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21. Who is likely to prevail?
The businessman objected and sued to enjoin construction of the building.
Six weeks ago, the cousin began construction of a building on the vacant tract.
Last year, the businesswoman conveyed the improved tract to a businessman. A month later, the grantee died, devising all of his property, including the vacant land, to his cousin.
Twenty years ago, the businesswoman conveyed the vacant tract to a grantee by a warranty deed that the businesswoman signed but the grantee did not. The deed contained a covenant by the grantee as owner of the vacant tract that neither he nor his heirs or assigns would «erect any building» on the vacant tract, in order to preserve the view of the river from the commercial building on the improved tract. The grantee intended to use the vacant tract as a nature preserve. The grantee promptly and properly recorded the deed.
A businesswoman owned two adjoining tracts of land, one that was improved with a commercial rental building and another that was vacant and abutted a river.
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A is incorrect. Although it correctly concludes that the businessman will prevail, it misstates the rationale. It is not relevant whether the commercial building was constructed before or after the other building.
C is incorrect. An equitable servitude will not end on the death of the promisor absent a provision which so provides.
D is incorrect. The grantee did not sign the deed; however, the grantee accepted the deed and recorded it. An equitable servitude may be created by a writing that complies with the statute of frauds and expresses an intention that the servitude exist. The deed to the grantee satisfied the Statute of Frauds and showed an intention that the grantee's heirs and assigns be bound. The promise restricting the use of the vacant land touched and concerned the land, placing a burden on the vacant tract and giving a benefit to the improved tract. The grantee recorded the deed. The cousin thus had constructive notice of the equitable servitude and is bound by it because nothing has occurred that would terminate the equitable servitude.