MBE Rules · Real Property
Restrictive covenant — enforcement and defenses
The rule
A restrictive covenant is enforceable in equity as an equitable servitude against a successor who takes with notice, provided the original parties intended the restriction to run and it touches and concerns the land. Enforcement may be defeated by: (1) changed neighborhood conditions frustrating the covenant's purpose, (2) acquiescence in prior violations by the enforcing party, (3) unclean hands, (4) laches, or (5) the servitude's violation of public policy (including the Fair Housing Act's ban on racial restrictions).
In plain English
Once you have a valid equitable servitude, the fight moves to defenses. The changed-conditions defense requires the change to be so pervasive that the restriction's purpose can no longer be substantially achieved.
The trap
A few violations at the edge of the subdivision are not enough — changed conditions must be neighborhood-wide.
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