Questions 162-165 are based on the following situation.
Meadowview is a large tract of undeveloped land located in the state of Eureka. Candlestick Housing Corporation (hereinafter referred to as Candlestick), the owner of Meadowview, prepared a development plan creating a suburban residential community known as Brunswick on the Meadowview tract. Set out below is the Declaration of Covenants that has been duly recorded for the Brunswick development scheme.
Whereas, the Candlestick Housing Corporation, sometimes referred to herein as Candlestick, a corporation organized under the laws of the state of Eureka, is the owner of Meadowview, parts of which Candlestick proposes to develop and improve, in accordance with an harmonious plan for the design and relative location of single-family dwellings, garages, stores, streets, walks, playgrounds, and other structures, so as to create a community to be known as "Brunswick" providing the greatest possible degree of health, safety, architectural beauty and amenity for the property owners and inhabitants thereof: and
Whereas, Candlestick being about to sell and convey lots and buildings located in certain parts of the said tracts, more particularly hereinafter described, desires to assure to said purchasers and their several heirs and assigns owning such lots and buildings, and their tenants, employees and the inhabitants within said property, the use, benefit and enjoyment of the common amenities, facilities and utilities in accordance with the said harmonious plan, and desires to provide for the maintenance of such amenities, facilities and utilities, and to this end desires that certain parts of its lands may be subject to certain restrictions, reservations, servitudes, covenants, agreements, easements, liens and charges, as hereinafter set forth; and
Whereas, for the more efficient protection of the community and control thereof by the inhabitants, Candlestick has deemed it desirable to provide an agency or instrumentality to which should be delegated and assigned the powers of maintaining and administering the community amenities, facilities and utilities aforesaid, and administering and enforcing the restrictions upon or affecting the said lands or portions thereof, and collecting and disbursing such charges hereinafter created; and
Whereas, there has been incorporated under the laws of the state of Eureka, as an association not for pecuniary profit, the Brunswick Association, for the purpose among others of exercising the functions aforesaid.
Now therefore, in consideration of the premises, Candlestick hereby covenants and agrees with the purchasers of plots or buildings thereon and each of them and with The Brunswick Association, which is hereby made a party hereto, that the property described in and referred to in this Declaration shall be held and shall be conveyed subject to the restrictions, reservations, covenants, conditions, servitudes, easements, agreements, liens and charges set forth in the various articles and clauses of this Declaration, to wit:
Section 1. Candlestick (for each parcel of property subject to this Declaration owned by it) hereby covenants, and each purchaser of any parcel of the property (whether purchased from Candlestick, or another) by the acceptance of a deed therefore, shall, whether or not it shall be so expressed in any such deed or other conveyance, be deemed to covenant and agree to pay The Brunswick Association an annual assessment or charge to be fixed, established and collected from time to time as hereinafter provided, for the creation of a Fund to be known as the "Brunswick Fund", each installment of which annual assessment or charge when due shall become a lien upon the parcel of the property against or on account of the ownership of which such assessment or charge is made.
Section 2. Such charge shall be in an amount to be fixed from year to year by the Board of Trustees of The Brunswick Association, and may be determined upon the basis of the valuation of each portion of the property and the improvements thereon as fixed by the assessing authority of the municipality in which such portion is located, or upon the basis of the area thereof in square feet, or by any other measure determined by The Brunswick Association to be fair and equitable.
Section 3. The monies collected by virtue of the charges or assessments or the lien created by this Article shall be paid to The Brunswick Association to be used in such manner and to such extent as the Board of Trustees of The Brunswick Association may determine to be for the benefit of the residents of the community and for the promotion of the health, safety and welfare of the property owners and inhabitants thereof.
Section 1. There shall never at any time be erected, permitted or maintained upon any part of the property any structure designed for or used as a saloon or place for the sale or manu¬facture of malt, vinous, or spirituous liquors; any cattle yard, slaughterhouse, hog pen, poultry yard, or stable (not including garage); any cemetery or crematory or any house of detention, reform school, asylum, or institution of kindred character; any building for the manufacture or storage of gunpowder or explosives; nor any trade, business, or use of the property (whether similar to the foregoing or not) which shall be determined by The Brunswick Association to be dangerous, or noxious or offensive because of the emission of odor, gas, dust, smoke (other than coal smoke) or noise, or unsuitable for the locality.
Section 2. As to any building site in the property upon which Candlestick shall in the first instance prior to the sale thereof cause a building or structure to be erected, such building or structure shall not be used for any purpose other than that for which the original structure was designed without the approval in writing of The Brunswick Association; provided that in no event shall any dwelling designed for occupancy by a single family be used or occupied as a dwelling for more than a single family for which it was originally designed; and provided further that no trade, commerce or business shall at any time be con¬ducted in any part of a building designed as a dwelling house.
Section 3. No profession or home industry shall be conducted in any part of a building designed as a dwelling house except upon the approval in writing of The Brunswick Association.
Section 1. All of the restrictions set forth or provided for in this Declaration shall be deemed covenants running with the land, and any and every conveyance of any part of the property shall be absolutely subject to the said restrictions whether or not it shall be so expressed in the deed or other conveyance thereof.
Section 1. The Brunswick Association hereby accepts each of the duties and obligations imposed on it by this Declaration sub¬ject to all the terms and provisions herein contained.
Section 2. The Brunswick Association may assign any or all of the rights, powers, titles, easements and estates granted to or conferred upon it by the Declaration to any one or more corporations or associations, municipal or private, that will agree to assume such interests. The assignment is to become effective on filing it with the recording officer.
Section 1. Violation of any restriction contained or provided for in this Declaration shall give The Brunswick Association, in addition to all other remedies, the right to enter upon the land and summarily abate or remove, using such force as may reasonably be necessary, at the expense of the owner thereof, any erection, thing, or condition that may be or exist thereon contrary to the intent and meaning of the provisions hereof; and neither The Brunswick Association nor its officers, agents, or employees shall be deemed guilty or liable for any manner of trespass for such entry, abatement or removal.
162. Under Article 4, Section 2 of the Declaration, The Bruns¬wick Association assigned "all the rights, powers, titles, easements and estates granted to or conferred upon it by the Declaration" to a municipal corporation, the Borough of Maplewood. The Association was then terminated. Lang, the owner of lot 18 in the Brunswick development, proposes to convert his single family dwelling into a mas¬sage parlor. The Borough of Maplewood asserts an action against Lang to recover money damages. Which of the fol¬lowing is the best argument for Lang?
(A) The restraint on alienation of his land is invalid.
(B) The city is not in privity of estate with The Brunswick Association.
(C) The benefit is in gross, hence the burden cannot run.
(D) The burden is in gross, hence the benefit cannot run.
(B) In order for a covenant to run with the land, the following four requirements must be met: (1) there must be a covenant; (2) there must be an intention that the covenant shall run with the land; (3) the covenant must be of a type which "touches and concerns" the land; and (4) there must be privity of estate. With respect to the privity requirements, Smith and Boyer state that "where the running of covenants is allowed the cases seem to agree that if there is (i) privity of estate between the original covenanting parties and (ii) simultaneous ownership by the covenanting parties in the same land and (iii) privity of estate between either of the covenanting parties and his assignee, the covenant will run with the land." In our case, choice (B) is correct because under the terms of the Declaration, there is privity of estate between the developer (Candlestick Housing Corporation) and the purchasers of the lots (e.g., Lang). However, there doesn't appear to be any privity of estate, either mutual or successive, between Candlestick and the Brunswick Association. Candlestick simply owns Meadowview and the Brunswick Association has no interest therein either as a co-owner or as a conveyee of an interest therein. Between Candlestick and the Brunswick Association there is simply the covenant (i.e., Declaration) which constitutes privity of contract. Therefore, there is no successive privity of estate between the Brunswick Association and the city of Maplewood because the latter only succeeds to the interest or estate which the Association has in the land.