Digest of the Law of Restrictions on the Use of Real Property

Claude Perrin Berry

G. I. Jones, 1915 - 657 páginas

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CHAPTER I	1

Effect of mortgage and foreclosure of restricted premises 31 Alteration of restrictions 32 By majority of owners of restricted property	2

Creation of restrictions	29

Termination or extinguishment of restrictions	49

CHAPTER II	52

Restriction made with reference to statute	67

Statutory definition of words 46 Where there are several restrictions in same in strument	68

Variance between contract for sale of and deed to property	72

Special damages 302 Nominal damages	285

Judicial notice	286

Burden of proof	287

Issuance of preliminary injunction	288

Breach of covenant constitutes the cause of action	290

When breach is committed	291

Decree should conform to life of restriction	329

290 Decree for removal of buildings	330

Covenant to build Time for performance	73

Whether a provision is a condition or restrictive covenant	74

Intention of parties	75

Where the deed declares the purpose of the grant	76

Technical or appropriate words 54 Conveyance with or without consideration	79

Provisions held to be covenants	80

Provisions held to be conditions	85

CHAPTER III	87

Denial of the equal protection of the	96

CHAPTER IV	97

Building defined 64 Not confined to dwelling house	98

Private stable	99

Fence	100

Brick wall	101

68 Pavilion	102

Billboard	104

Monument	105

L added to existing building 72 Covenant relating to erection of buildings not ap plicable to existing buildings	106

Build includes increasing height of building 74 Semidetached building 75 Bay window as violative of restriction against building	107

Porch as violative of restriction against building	109

Steps as violative of restriction against building	116

Usual projections from buildings	122

Restriction establishing front line of building	128

Residence purposes only Unsightly structure	129

Residence purposes only Flats	130

Residence purposes only Apartment house	131

Private residence Two family house	132

Private residence Boarding house	133

Garage	134

Dwelling Double house 99 Dwelling Private garage 100 Dwelling Tent 101 A private dwelling Flat 102 Private dwelling Boarding house 103 Priv...	135

Dwelling purposes only Meat and vegetable store 127 Residence purposes only Stable on one lot as ap purtenant to residence on another 128 Reside...	136

Improved with a brick residence Erecting addi tional buildings	172

Private dwelling or residence only Letting of rooms	173

Lessee to occupy residence only for herself Marrying man with children	174

Houses as meaning dwelling houses	175

One house Two apartments on different floors	176

Not more than one house Flats	178

One house Stable erected before house	179

Private house Private sanitarium	180

Private house Stable erected before house	181

Private house Auction sale of its contents 149 Tenement Apartment house	182

Tenement Family hotel 151 Flat defined Question of fact	187

Flat and apartment distinguished	189

By amount of rental	190

Forbidding erection of flat or residence near street line not applicable to garage and storeroom	191

Restrictions relating to construction and not use of residences and dwellings	192

CHAPTER VI	195

Offensive purpose or occupation Garage 192 Offensive to neighborhood for dwellings Garage 193 Offensive to neighborhood Coal yard 194 Offe...	196

Same subject Contrary view	206

Specific enumeration of prohibited uses impliedly permits others	207

Specified use only Not violated by failure to use for that purpose	208

Cotton gin Small residences for employes	209

Court house and jail Stable	210

Livery stable Private club stable	211

Studio and salesroom Saloon	212

Dry goods jobbing business Business of auctioneer	213

Oil cloth and dry goods store Auction sales	214

subsequently purchased by covenantor	216

Rights of user that pass as appurtenant to a grant or lease	217

Business of a publican Licensed spirit grocer	218

Detrimental to use for dwelling houses Storage house	219

Detrimental to use for dwellings Question of fact 183 Right to erect a pier	220

Outward mark or show of business Signs	221

Trade of butcher Selling raw meat at retail	222

Against nuisances Must be nuisance in law 186 Words other nuisances following specific enu meration	223

Nuisance National parochial school 188 Nuisance Public garage	224

School purposes and uses consistent therewith	225

Covenant to keep premises clean	226

Rear end of	239

Stable as including garage	240

Hospital as dangerous to neighboring inhabitants	241

Occupancy by only one family Hospital operating	242

room 243 Bough house Pavilion	243

Against removal of building Alteration	244

Land for college campus Oil well	245

Covenants relating to ways	246

Covenants relating to rights of light and	247

Covenant to keep land for common benefit or to keep	248

vii	254

Street line has reference to line existing when re striction was made 238 Building to cover entire front of	267

Issuance of injunction without notice to defendant	268

Notice to defendant before applying for injunction	269

Injunction as preventive remedy only	270

Mere apprehension as justifying injunction Threatened breach	271

What agreements will be enforced	272

Enforcement of covenants in leases	273

Enforcement of covenant to sell only specified brand of beer	274

Where there is an adequate remedy at	275

To prevent irreparable damage	276

To prevent a multiplicity of actions	277

Covenant not to build with entrance or way to build ings in rear	278

Covenant to build on every third lot 251 Covenant to build time for performance 252 Second and third stories extending over building line 253 Al...	279

Covenant to sell one kind of beer Duty of cove nantee to supply at reasonable price	280

Covenant not to grub up trees Resetting 256 Not to plow pasture land What land included 257 Against land vesting in person of African descent C...	281

Covenant relating to deed to land does not include a lease	282

CHAPTER VIII	284

When building can be altered to conform with restriction	332

Decree when use and not construction of building constitutes the violation	333

Decree for injunction and damages	334

Alternative decree for injunction or damages	335

Denial of injunction and granting of damages	336

When decree should be subject to modification	337

Construction of decree 298 Actions for damages	338

299 Actions for successive violations	339

300 Measure of damages	340

Damages where restriction constitutes breach of cove nant against incumbrances 304 Counterclaim in action for damages for breach of restriction	344

CHAPTER IX	346

Restrictive covenants that run with the land 339 Illustrative cases 340 Materiality of question 341 How determined 342 Personal restrictive covena...	347

Grantees from common grantor taking with mutual obligations	363

Where restrictions are contained in deed to common grantor only	365

Where lots are conveyed under a general plan or scheme of improvement	367

Cases holding general plan to have been adopted adopted	371

317 Cases holding general plan not to have been adopted	377

How intention to create general plan is ascertained	384

General plan created by oral representations	387

Lots not originally included in general plan 321 General plan including land not owned by grantor	391

Where restrictions under general plan vary as to dif ferent sections of tract 323 Auction sale of lots Some lots unsold	393

Effect on general plan of selling some lots without restrictions	395

Insufficient instrument or instrument not proper to be recorded as notice	450

Uniform position of houses as notice of building line	451

Necessary parties to actions	452

Grantor under general plan	453

Party complainant must have some interest to protect	455

Complainant without property affected by restric tion	457

Contractor as party defendant 356 One who assumes to act as owner as party defendant	459

Actions between landlord and tenant in relation to restrictions	460

Sublessee as proper party	463

Lessor of bankrupt lessee	465

Actions between lessees	466

Mortgagee	468

Heirs and assigns	469

Husband covenanting without wife 364 Railroad company 365 State as party complainant	471

Persons liable for damages	472

CHAPTER X	473

That enforcement of restriction would be inequitable	475

Performance of restriction impossible or imprac ticable	479

Abandonment	480

Illustrative cases	482

General scheme	483

Immaterial violations as indicating	486

Where complainant is not affected by other viola tions	488

Where violations were according to popular inter pretation of restriction	489

Of one of several restrictions 377 As to part of restricted property	490

Waiver	492

Illustrations of conduct amounting to waiver	493

Illustrations of conduct held not to amount to waiver	498

Kinds of breaches indicating waiver	502

Where complainant was not affected by other violations	503

As to part of estate	505

By grantor as affecting grantees	506

Limited or restricted waiver	507

Acquiescence	509

Restriction for benefit of grantor or his property exclusively	511

In slight violation does not justify greater viola tion	512

389 In violation of one of several restrictions	514

Estoppel	516

Complainant must have knowledge of facts 392 As between landlord and tenant	517

As to one of several tenants in common	518

Laches	520

Illustrations of conduct held to amount to laches	521

Illustrations of conduct held not to amount to laches	522

That complainant has violated the restriction he seeks to enforce	529

Complainant guilty of only slight violations	531

As dependent upon the comparative extent of com plainants violation	535

Complainants violation Attempt to alter restric tion Defendant not bound 401 Where complainants violation was assented to by only other party in i...	536

Where only some of a number of complainants have violated restriction 403 Change in the character of the restricted territory	538

Illustrative cases	542

Where restriction is still of value to dominant estate	547

406 Where the restriction renders servient estate of little or no value 407 As dependent upon conduct of complainant	549

Steam and street railroads in street 409 Covenant against the sale of intoxicating liquor	552

As a defense to action for damages 411 Change in character of territory surrounding re stricted district	553

That the property is more valuable for other purposes	554

That complainant has not been damaged by the vio lation	555

Illustrative cases	558

Court will consider future as well as present use of dominant owners property	561

As depending upon the degree of injury or annoyance	563

Benefit instead of damage 418 That complainant will not be benefited by enforce ment of restriction	564

Pecuniary loss to defendant	567

Statute of frauds	568

Statute of limitations	569

That the restriction is contrary to public policy	570

That the restriction is in restraint of trade	572

That the restriction tends to create a monopoly	575

That the restriction is unreasonable 426 That the violation is immaterial	577

That violation is not offensive or a nuisance 428 When nuisance will not be enjoined	578

That the restriction is vague and uncertain	579

Expiration of restriction during pendency of suit or soon thereafter	583

That defendant was ignorant of restriction 432 That there is no legal liability	584

That the improvements made in restricted territory are of little value 434 That title to property in question is not in defendant 435 Effect of dismissa...	585

Effect of breach of the terms of a release	588

439 License from state to build as authority to violate restriction	589

Direitos de autor

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Palavras e frases frequentes

action agreement apartment house appurtenant bay window benefit breach building erected building line built carrying clause complainant condition constitute construction construed contract conveyance court of equity cove damages deed containing deed of conveyance defendant demised premises dwelling house easement enforce enjoin erected thereon fact feet flat forfeiture front line front wall grantee grantor height heirs and assigns held imposed injunction intention L. J. Ch L. T. Rep land conveyed lease lessee lessor liquor manufacturing Mass meaning ment N. J. Eq N. Y. App N. Y. Misc N. Y. Supp nant neighborhood notice nuisance occupied offensive parcel parties persons plaintiff porch portion question residence purposes respect the court restrain restrictive clause restrictive covenant rooms scheme sold stable stipulation street line tenant tenement tenement house tion tract of land trade or business vendor violation Wkly words

Passagens conhecidas

Página 342 - Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally — ie, according to the usual course of things, from such breach of contract itself — or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.‎

Aparece em 605 livros desde 1803-2007

Página 240 - ... and every part and parcel thereof, with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof, forever.‎

Aparece em 99 livros desde 1816-2004

Página 342 - But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.‎

Aparece em 226 livros desde 1803-2007

Página 420 - It is said that, the covenant being one which does not run with the land, this court cannot enforce it ; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.‎

Aparece em 62 livros desde 1830-2003

Página 331 - If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done...‎

Aparece em 60 livros desde 1861-2005

Página 356 - Martin *' into operation it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants...‎

Aparece em 51 livros desde 1886-2006

Página 101 - building:" generally means any structure or edifice enclosing a space within its walls, and usually covered by a roof, the purpose of which is, for example, to provide shelter or housing, or to provide working, office, parking, display, or sales space. The term includes, for example, structures such as apartment houses, factory and office buildings, warehouses...‎

Aparece em 63 livros desde 1882-2007

Página 437 - When therefore it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, and originally forming with the land conveyed one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be...‎

Aparece em 38 livros desde 1864-1992

Página 407 - ... still retains; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, it may be enforced by the assignee of the grantor against the assignee (with notice) of the grantee.‎

Aparece em 16 livros desde 1886-1960

Página 597 - The judgment of the Circuit Court is reversed and the cause remanded to that court, with directions to dismiss the action for want of jurisdiction.‎

Aparece em 177 livros desde 1820-1999

Informação bibliográfica

Título	Digest of the Law of Restrictions on the Use of Real Property
Autor	Claude Perrin Berry
Editora	G. I. Jones, 1915
Número de páginas	657 páginas

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