A Colorado developer conveys lots in a new subdivision using deeds that include a covenant restricting the property to single-family residential use only. Fifteen years later, a lot owner wants to build a duplex. The developer is now deceased and the original lots have been resold multiple times. Can the current lot owner be bound by the original deed restriction?
Correct Answer
C) Yes, if the restriction was intended to run with the land, touches and concerns the land, and there was privity of estate between the original parties
In Colorado, a deed restriction (restrictive covenant) that is intended to run with the land binds all subsequent owners if three requirements are met: (1) the original parties intended the restriction to run with the land; (2) the restriction touches and concerns the land (i.e., it affects the use or enjoyment of the land itself); and (3) there was privity of estate between the original grantor and grantee. When these requirements are met, the restriction is enforceable against all future owners who take with actual or constructive notice of the restriction — which is provided by recording. A restriction limiting property to single-family residential use satisfies all three requirements.
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Related Topics & Key Terms
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Related Concepts
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Fee simple absolute is the highest and most complete form of property ownership, giving the owner unrestricted rights to use, possess, enjoy, and dispose of the property. It is of unlimited duration and fully inheritable.
Community property is a system where property acquired during a marriage is owned equally by both spouses.
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