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EQUITABLE SERVITUDES & MAINTENANCE COVENANTS

Maintenance Covenant. Associations should record additional covenants against individual properties whenever an owner is granted exclusive use to common area or makes external alterations to a condominium or installs  an electric vehicle charging station. The covenant contains the owner's maintenance obligations, holds the association harmless, addresses damage issues, and indemnifies the association. It is then signed by the owner and recorded by the association. Doing so creates a permanent record and puts all future owners of the property on notice of their obligations. 

Equitable Servitude. An "equitable servitude" creates an obligation or encumbrance on land, enforceable in equity. Once recorded it runs with the land and continues to burden/benefit successor owners of the land and is enforceable by injunctive relief, i.e., it can be enforced without resorting to a breach of contract cause of action. (Franklin v. Marie Antoinette.)

Once the first buyer "accepts" the covenants, conditions and restrictions recorded against a property by purchasing a unit, a common interest development is created (Civ. Code § 4200), and the CC&Rs become enforceable equitable servitudes, unless unreasonable and inure to the benefit of and bind all owners of separate interests in the development. (Civ. Code § 5975(a); see Bus. & Prof. Code, § 11018.5.(c).) (Pinnacle Museum v. Pinnacle Market.)

Equitable servitudes permit courts to enforce promises restricting land use when there is no privity of contract between the party seeking to enforce the contract and the party resisting enforcement. Like any promise given in exchange for consideration, an agreement to refrain from a particular use of land is subject to contract principles, under which courts try 'to effectuate the legitimate desires of the covenanting parties. When landowners express the intention to limit land use, that intention should be carried out. (Nahrstedt v. Lakeside Village.)

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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