The general rule of construction favors appurtenant servitudes over servitudes in gross. Further, restrictions in a deed will be regarded as for the personal benefit of the grantor unless a contrary intention appears, and the burden of showing that they constitute covenants running with the land is upon the party claiming the benefit of the restriction. Combining these principles, restrictive covenants are appurtenant to an interest in land, the benefit of which is personal to the covenantee and is enforceable only by the covenantee, unless a contrary intent is expressed in the language of the covenant.
Respondent property seller conveyed approximately twenty-three acres to the petitioner property buyer by a warranty deed that contained a restrictive covenant that limited construction to a colonial-type residence of a specified value. Respondent no longer owned other land in the area. Petitioner sought a declaratory judgment that the restrictive covenant did not limit the number of homes to be built on her property. The trial court granted petitioner’s motion for summary judgment on the basis that respondent lacked standing to enforce a restrictive covenant. On respondent’s appeal, the court affirmed the trial court’s judgment.
Could respondent property seller enforce the restrictive covenant contained in the deed after losing ownership of the land that benefited from the covenant?
The restrictive covenant was created to personally benefit respondent property seller as the owner of land that benefited from enforcement of the restriction. Thus, the restrictive covenant was appurtenant, and respondent held the benefit personally. Accordingly, respondent did not have standing to enforce the covenant because she no longer owned land that benefited from the covenant. The restrictive covenant contained in the deed to petitioner property buyer expressly stated that the burden would run with the land but expressed no intent regarding the benefit of the covenant or the type of covenant conveyed.