Private Land Use Controls


Riley v. Bear Creek Planning Committee



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Riley v. Bear Creek Planning Committee


Feb 1964 ASD Riley

Mar 1964 Deed recorded

Nov 1964 Declaration filed

Rileys complied with declaration, asked permission to do certain things on their land.

Jan 1972 Snow tunnel built

Facts: Riley’s sue Bear Creek Committee, slander on their title. Told they cannot build on their land, the Riley’s said that’s a derogation on their title so brought an action to quiet title. Want to remove all restrictions on their title. Usually done because they want to sell the land. Will be able to sell it for more without the restrictions.

Dissent (p. 970): P will be free to subdivide the land, ignore building lines, obstruct views, and strip the land. These are natural things people do with their land. These are not heinous acts, using the land in accord with property rights. Can use the land this way unless they had agreed not to. But the Riley’s had agreed, so why not enforce against them?

Rule: the restrictions were not in the language of their deed.

Equitable servitude requires


Riley’s didn’t have notice in any deed. Has to be a deed recorded at the time they got their deed and which they would have had record notice of. notice that it did not matter that the declaration was filed nine months later, even if it had been filed beforehand wouldn’t have mattered since not in their deed. Had to be in their deed or a deed in their chain of title which would have given them notice. There was the offer of proof by D that the Riley’s had seen the declaration, they had agreed to it, they had complied with it. But that is not enough.

Leaves a nagging questions: ASD R. Who is suing? The Rileys are the people that made the promise, the burden doesn’t have to run, why not just sue the Rileys? BCPC, homeowners assoc., this was a promise but it can’t be enforced because of the SOF, about land, had to be written, it wasn’t. The Riley’s could have gotten out of this in a number of ways, they chose the property route. The court comes out with the conclusion that this is contractual in nature, like a covenant, no problem with affirmative contracts, can be enforced according to the privately ordered rules within the covenant. Only enforce it when there was meeting of the minds, intent on both parties part to create the contractual obligation. If there wasn’t, don’t enforce it.

The alternative way, not about contracts, about a servitude on the land. Like other servitudes won’t enforce against bona fide purchasers if they had no notice. Not intended to be enforce, nothing to do with the land, not enforced. Won’t get into inquiry about meeting of minds. Just say servitude that burdens the land as long as there is notice. The more appropriate way to view servitudes, look at as real property interest that burden the land similar but distinct from easements. Easements are much more hardier devices, than covenants, equitable servitudes even as interpreted as contractual agreements.

Columbia Deeds (pp. 1001 – 1016)

Look at the language closely, makes sense out of the prior covenant cases and foreshadows all the cases that follow it. (The stuff Upham really loves, how communities govern themselves, what processes they develop for that, and at what point outsiders intervene in that governance.)

This is all about control. The people in Columbia have a choice, about contractual choice, not like Van Rensallear.

A lot of due process built into these deeds.



  1. trace the deal that makes them run – hint: the Hampton Randolph deed in Holliday should help;

p. 1001, deed between CPRA, grantor and Aileen Ames, unmarried, resident of Howard County, grantee. Appears to be one deed with a lot of conveyances.

HRD CPRA HRD CPRA Ames HRD

Ames is a straw, like Betty Thomson of Nicholson v. 300 Broadway Corporation. The purpose of this is to create horizontal privity, so that when HRD next sells it CPRA has the ability to enforce. The agreement that eventually will be enforced by CPRA.

CPRA Ames HRD (becomes common grantor) to all the people that buy into the town.

Trying to enforce agreement by Ames to abide by the declaration, true for all the conveyances. All of Rouches land is burdened and benefited by the declaration.

In Holliday, there will be an anomaly in the case, think about why the conveyances were created at a certain point, think back to this conveyancing structure.

Henceforth, all of the land that HRD and subsequent corporations will have land that is burdened and benefited, in chain of title. When X goes to look at deeds she will look at all of the conveyances which will have all of the declarations in it, in direct chain of title, no record notice problems anywhere.


  1. determine what standards will be used by the private government when deciding what a person can and cannot do on her property (foreshadowing Rhue and Davis);

The overriding concern is harmony, lack of disputes, living together, each person willing to forego the extreme enforcement of rights, others will forego the extreme enforcement of their rights. Based on the Asian view that society is better when individuals think of the whole. Culture of implicit agreements that don’t have to be spoken of.

Upham perspective: that’s crap, built up by the rules. We have the rules here, they are pretty explicit. What is explicit are factors not particulars. But if we had the complete set of deeds, we would find that the restrictions are specific.

Architectural Committee; Architectural Control (p. 1012)

If you move to Columbia better be into group living, live with people similar to them with similar taste. Why developments are so successful.



  1. determine to what extent the CPRA can waive or amend the restrictions (foreshadowing Van Sweringen and Kenney).

When they buy new territory, after its set up what can the CPRA do to change restrictions? Think of Trump Tower in NYC. How much can they change the rules that create the harmony? Allows Rouse family to buy additional property. Have the ability to set up regulations for each outpost.

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions


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