A covenant cannot be enforced as an equitable servitude where the benefit is in gross and neither affects retained land of the grantor nor is part of a neighborhood scheme of similar restrictions. However, the right to urge enforcement of a servitude against the burdened land depends primarily on the covenant's having been made for the benefit of other land, either retained by the grantor or part of a perceptible neighborhood scheme. Where the benefit is purely personal to the grantor, and has not been directed towards the improvement of neighboring properties, it cannot pass as an incident to any of his retained land and therefore is not considered to burden the conveyed premises but only, at best, to obligate the grantee personally.
Defendant seller developed property, and by warranty deed conveyed a one acre lot to plaintiff purchasers for consideration. Based on a provision in the deed regarding the grantor's reserved right to build or construct a dwelling on the property, plaintiffs filed an action to quiet title to the land. Defendant appealed the trial court's award of summary judgment to plaintiffs, and the court affirmed.
Does the contested deed provision constitute an enforceable covenant restricting the use of plaintiffs' land?
The court ruled that the deed provision in question was incapable of enforcement and was not restrictive of plaintiffs' title. The court found that even assuming the clause was sufficiently definite to give defendant the option to build a dwelling on the premises, it still could not operate as a covenant running with the land or an equitable servitude. The court held that the provision was of a personal nature, and simply an arrangement between the parties designed to insure defendant a profit. The court found that plaintiffs' action was proper under the statute, and it was impossible to determine whether plaintiffs acted in good or in bad faith.