Homework answers / question archive / DRAFTING EXERCISE 4 Drafting an equitable servitude to preserve the rural character of a beautiful valley Assume that you are lucky enough to own 200 acres of land in a beautiful valley

DRAFTING EXERCISE 4 Drafting an equitable servitude to preserve the rural character of a beautiful valley Assume that you are lucky enough to own 200 acres of land in a beautiful valley

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DRAFTING EXERCISE 4

Drafting an equitable servitude to preserve the rural character of a beautiful valley

Assume that you are lucky enough to own 200 acres of land in a beautiful valley. Your land begins about halfway up the hill and slopes gently down to a stream, which runs through the valley, The central portion of your land has been cleared just enough to give you a spectacular view across a meadow you own, which is filled with wildflowers, is edged by large trees, and slopes gently down to the stream. Your house is at the top part of your land, close to the one road that goes through the area.

On the other side of the highway, 100 acres of land are owned by someone who has lived in the area for years, and likes the rural character of the area, but is financially tempted to subdivide the land if that becomes feasible. Your neighbor's house is situated so that he also benefits tremendously by the view across your land to the stream.

Right now, your neighbor seems interested in making a deal with you that if you will not increase the height of your house, which would block his view of the stream, then he will not subdivide his land. Thus, the rural character of the area would be preserved - at least for a time.

As a lawyer, you realize that conditions may change, so that permanent restrictions (such as easements) would not be appropriate for either you or your neighbor. But you would like to impose some restrictions on both pieces of land so that, for the foreseeable future, the rural

character of the land will be preserved.

Draw up an equitable servitude that will appropriately restrict the height of buildings to be built on your land in the future. If you like, you may also draft an appropriate equitable servitude for your neighbor to place on his land - limiüng subdivision and construction of additional buildings.

As you begin your drafting, you may want to check the Pointers for Drafting that follow Drafting

Exercise 5.

DRAFTING EXERCISE 5

Drafting an equitable servitude to protect a solar collector

As a firm believer in energy conservation and alternate sources of energy, you are investigating the possibility of installing a solar collector on the roof of your house in the city. Right now, the local specialist has told you that the angle of your roof and the amount of sunlight it receives make it ideal for installation of a solar collector. However, the local specialist has wamed you that if your neighbor across the street adds a second story to her house or allows the evergreen trees near the front of her lot to grow to a height of thirty feet or more, this could seriously interfere with the efficiency of your solar collector.

Right now, your neighbor has no intention of changing the use of her property. But since she is a successful, single, young lawyer, you feel that future financial success, or romantic

considerations, might cause her to change her plans. You would like to be protected against having your neighbor, or any future owner of her land, develop that land in such a way as to interfere significantly with your solar collector. It does not seem likely that your neighbor would be willing to grant you an easement across her land since easements are too permanent. But she might well agree to an equitable servitude.

Draft an equitable servitude that you might be able to persuade your neighbor to place on her land to protect your solar collector.

As you begin drafting the equitable servitude, you may want to check the Pointers for Drafting that follow.

POINTERS FOR DRAFTING AN EQUITABLE SERVITUDE

Drafting an equitable servitude is quite easy. Just be sure that the document is signed by the owner of the land and is RECORDED, in order to provide the necessary notice to subsequent purchasers. If the owner imposes the equitable servitude, and if subsequent purchasers take with notice, then the equitable servitude is enforceable - as long as conditions do not change too much.

1. State the name of the owner of the land that is to be subject of the equitable servitude (the neighbor). For the benefit of future title searchers, it is always a friendly gesture to include the

date on which the neighbor became the owner of the land and the book and page number at which that deed is recorded.

2. Describe the land that is to be subject to the equitable servitude. It is important that this description be very precise. You do NOT want the equitable servitude to be implied onto other land owned by the neighbor. In any case, for the benefit of all future owners, you should make it very clear just which land is to be affected by the equitable servitude.
3. Be very specific on the particular restrictions imposed - for example, that no building over a specified height can ever be consü•ucted on a specified portion of the land or that no trees can be permitted to grow to be over a certain height within a specific area. In some cases, pure height restrictions may be sufficient. Many ümes, however, it may be more appropriate to protect sight lines.

For example, to protect certain sight lines, you might want a provision that no building or tree is allowed within the area described by starting at a "view spot" (a certain spot, at a certain height, on the land to be protected - i.e., NOT on the neighbor's land), with angles of protection on either side of a straight line to be drawn from the selected view spot to the closest point on the specified top of the specified mountain, or the like. Or for a solar collector, you may just want to specify angles from the location of the collector. In any case, the goal is to describe the AIR SPACE you want clear across the entire piece of land, not just the height of buildings on a particular part of the land.

REMEMBER, if your concern is with sunlight, then you will have to be sure to specify appropriate angles for the different times of the year. Because of the way the earth tips on its axis, in North America the sun appears to be fairly low in the southern sky on winter days and almost directly overhead during the summer. The specific angles can and should be calculated for solar collectors in specific areas. For example, the angles appropriate in Boston in the winter will be significantly different from the angles appropriate in San Diego in the winter. Since it is farther north, Boston simply will have greater variation between winter sun angles and summer sun angles than will San Diego. Alaska, of course, has the greatest variation between winter and summer sun of any place in the United States.

4. Indicate that the equitable servitude is to be binding on successors in interest - that it is intended that future owners of the land shall be bound by the restrictions.
5. Consider giving some guidance as to how long the equitable servitude is to last. If the equitable servitude is just to protect a solar collector, for example, then it may be appropriate to have the resüiction terminate six months after the collector has been removed and not replaced by another collector. Or an equitable servitude might be drafted to terminate, for example, when the owner of specified land (probably the land to be benefited) files a notice of termination or when the land is zoned for commercial use.
6. Try to provide some means, short of litigation, to solve problems that may arise with regard to the equitable servitude. These problems might include interpretations of the extent of the equitable servitude if technology changes, for example, as well as some way of ascertaining whether or not the equitable servitude has become unenforceable because of changed conditions.

E.               NOTE ON PROTECTIVE COVENANTS FOR RESIDENTIAL DEVELOPMENTS

Most residential developments have a set of protective covenants, imposed on the land by the developer when the project is begun. Technically, these restrictions are probably equitable servitudes because they are unilaterally imposed on the land by the developer, while the developer owns the land, but there is no harm in accepting popular custom and referring to them as protective covenants.

Such protective covenants are nearly always recorded and are therefore binding on all subsequent owners of the land, who will take with notice of the protective covenants because they are recorded. Even though many landowners are not actually aware of the land use restrictions imposed by the protective covenants, when these covenants are recorded, a buyer will automatically have record notice of the recorded protective covenants, and thus will be bound by them.

The following protective covenants are typical of the land use restrictions normally imposed by a developer. Notice that many of the provisions of the protective covenants are very much like zoning restrictions - specifying residential use only, setback lines from streets, location and height of fences, and so on. However, since zoning can be changed at any time by the local