Express Covenants by Reference and Equitable Servitudes by Implication?
Birdwood v. Bulotti Construction, Inc., 175 P.3d 179 (Idaho 2007).
An association sued one of the owners seeking to enforce the declaration of covenants and restrictions. The owner wanted to divide its lot in four parts, but the covenants limited the lot’s use to single family and household. Initially, the owner sought the consent of all owners to divide its lot, acting as if the covenants indeed restricted the lot’s use. Later, the owner changed its position, claiming that the developer, the seller of the lot, never signed the covenants document.
The district court found that the covenants did not bind defendant because nobody in the chain of title ofLot 15 signed them. On appeal, the court stated that the fact that developer drafted the covenants did not alone subject the property to the restrictions. Also, the court rejected plaintiff’s argument that developer ratified the covenants when the developer referred to the plat in the deed of conveyance. The court then held that defendant was not estopped from denying that the covenants applied to Lot 15 because defendant changed its position. The court noted that defendant could be estopped from changing its mind only if that change would harm plaintiff. The only harm of the plaintiff, however, resulted from not signing and adopting the covenants.
The court also rejected the plaintiff’s argument that an equitable servitude should stop defendant from dividing its lot. An equitable servitude is a covenant that results by implication from the language of the deeds or the conduct of the parties. The facts in this case, however, did not support an implication that the covenants apply. The common grantor, the developer, did not include restrictions or covenants in the deeds of the others to allow them to argue that the restrictions apply to defendant by implication.
Accordingly, the court of appeals affirmed the district court’s judgment for defendant.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
An association sued one of the owners seeking to enforce the declaration of covenants and restrictions. The owner wanted to divide its lot in four parts, but the covenants limited the lot’s use to single family and household. Initially, the owner sought the consent of all owners to divide its lot, acting as if the covenants indeed restricted the lot’s use. Later, the owner changed its position, claiming that the developer, the seller of the lot, never signed the covenants document.
The district court found that the covenants did not bind defendant because nobody in the chain of title of
The court also rejected the plaintiff’s argument that an equitable servitude should stop defendant from dividing its lot. An equitable servitude is a covenant that results by implication from the language of the deeds or the conduct of the parties. The facts in this case, however, did not support an implication that the covenants apply. The common grantor, the developer, did not include restrictions or covenants in the deeds of the others to allow them to argue that the restrictions apply to defendant by implication.
Accordingly, the court of appeals affirmed the district court’s judgment for defendant.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Posted by Ryan McCabe at 2/24/2009 9:31 AM 
Categories: Homeowners Association, Common-Interest Community Association, Covenant Enforcement, Equitable Servitude, Covenant Creation
Categories: Homeowners Association, Common-Interest Community Association, Covenant Enforcement, Equitable Servitude, Covenant Creation
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