Academic

A New Restrictive Covenant from Tuscaloosa

By propertyprof

Ryan Hendley, one of my former students sent me this.  I absolutely love it.  I've been sitting on it for a while, because I knew I wanted to use it as a final exam question and couldn't blog on this until the exam was over and graded.  But now....

A condominium complex overlooking the University of Alabama football practice field has just gone up (the Chimes Condominium, named after the Denney Chimes on campus, obviously).  I can see how that would be particularly valuable real estate because of the view.  And the condos are pretty swank accommodations, too!  Alabama boosters can watch practice to their heart's content.  But the football team is apparently (and understandably) concerned by the problems this might present for spying.  One solution I suppose is to put up a giant screen--I guess that might be done with a few telephone polls and netting strung across them.  But no need for a screen when you can have property law come to the rescue. ...

There's a restrictive covenant that's been placed in the deeds out from the condominium.  The covenant prohibits photographing the football team's practices or otherwise disclosing what you see about them from the condos.  Now, that poses some pretty interesting questions by itself--does the covenant run with the land?  Can the University enforce it?  I'm guessing yes to both questions.  First, it's a negative covenant, which restricts what use the owners of the condo can make with their land; the restriction is for the benefit of a neighbor.  I think the burden touches and concerns the land because it limits use of this particular parcel as it relates to a neighboring parcel.  (Not all that different from a restriction on a carport, for instance).  I don't see anything here that suggests the University has any relationship with the condos, but that kind of horizontal privity is not (generally) required these days.   The University ought to be able to enforce this as a third party beneficiary of the agreement between the condo's developer and the purchaser.

Gotta love university towns!  They create a lot of great property questions.  And Tuscaloosa in particular--hey, there's Spiller v. Mackereth and now the Chimes Condominium covenant.

(Just to be clear--and for Alabama football purists, the Chimes Condominium overlooks the practice field, not the Bryant-Denny Stadium, which is what is pictured above.  For an arial view of  the Chimes, look here.)

Full post as published by The Faculty Lounge on February 02, 2009 (boomark / email).