Sharafis now own and retained the parcel the Selfs now own, was a personal covenant
that is not enforceable against the Selfs. The Sharafis contend the building restriction is
enforceable as a covenant running with the land and as an equitable servitude. We
conclude the building restriction is enforceable as a covenant running with the land under
Civil Code2 section 1462 and, accordingly, reverse with directions to enter judgment in
favor of the Sharafis.
1 Defendants refer to themselves collectively as the Sharafis in their appellate briefs.
2 Unless otherwise indicated, all further statutory references are to the Civil Code.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
In 1945 Elizabeth Fleet purchased a parcel of real property described as "Lot 4 in
Block 'I' of the Resubdivision of a portion of Villa Tract, La Jolla Park, in the City of San
Diego." In November 1946, Fleet conveyed a portion of Lot 4 to Jay M. and Nita
Donovan by a grant deed, which provided that she was conveying "[a]ll of Lot 4
EXCEPTING the following described property in Block 'I' . . . :" The deed then set forth
the legal description of the portion of Lot 4 that Fleet retained.3 Under the heading
"Restriction[,]" the deed stated: "A consideration of this sale is that no buildings will be
erected now or at any future date on the [property retained]."
In 1989, the Selfs purchased from successors in interest of Fleet the portion of
Lot 4 that Fleet retained as well as some adjacent property. Although the grant deed
conveying the Lot 4 property to the Selfs does not refer to the building restriction, the
Selfs were made aware of the restriction before they purchased the property.4 The Selfs
3 The 1946 grant deed sets forth the legal description of the retained portion as follows: "Beginning at the most Northerly corner of Lot 4, being also the Southerly line of Pepita Way: thence South 41° 19' West along the Northerly line of Lot 4, a distance of 60 feet to the Northwest corner of Lot 4; thence South 38° 32' East along the Westerly line of Lot 4 to the most Westerly prolongation of a line that would be the Southerly line of Lot 7; thence Easterly to the Easterly line of Lot 4 and also the most Southwesterly corner of said Lot 7 in said Block 'I'; thence North 30° 54' West, a distance of 118.42 feet to the most Northerly corner of Lot 4."
4 The building restriction was specifically noted in the sellers' Real Estate Transfer Disclosure Statement, which the Selfs signed to acknowledge their receipt of a copy of that document about a month before they completed the purchase of the property.
3
later transferred the property to their family trust. In October 2010, the Sharafis obtained
title to the portion of Lot 4 that Fleet sold to the Donovans, and an adjoining lot.
In January 2011, the Selfs filed a verified first amended complaint against the
Sharafis for quiet title and declaratory relief, seeking an adjudication that they held title
to their Lot 4 property free of the building restriction contained in the 1946 grant deed
and that the building restriction is invalid and unenforceable. In March 2011, the
Sharafis filed a cross-complaint for declaratory relief, seeking an adjudication that the
building restriction is "binding, valid and enforceable against the Self's [sic] as the
owners of the Restricted Property and as against all subsequent owners of the Restricted
Property."
The Selfs and the Sharafis both filed motions for summary judgment. The Selfs
argued in their motion that, as a matter of law, the building restriction is not enforceable
as a covenant running with the land or as an equitable servitude. The Sharafis argued the
building restriction is enforceable as a covenant running with the land under two different
statutes that define such covenants — section 1462 and former section 1468. They
additionally argued that the building restriction is enforceable as an equitable servitude,
and as a negative easement. The court granted the Selfs' motion and entered judgment in
favor of the Selfs and against the Sharafis, ruling the building restriction is not a covenant
running with the land, an equitable servitude, or a negative easement.
4
II
DISCUSSION
Because the material facts are undisputed, the legal significance of those facts
presents a question of law, which we review de novo. (Hill v. San Jose Family Housing
A. Statutory Scheme for Covenants Running with the Land
Section 1460 provides: "Certain covenants, contained in grants of estates in real
property, are appurtenant to such estates, and pass with them, so as to bind the assigns of
the covenantor and to vest in the assigns of the covenantee, in the same manner as if they
had personally entered into them. Such covenants are said to run with the land." Section
1461 provides: "The only covenants which run with the land are those specified in this
Title, and those which are incidental thereto." A covenant can run with the land under
either section 1462 or section 1468. (Monterey/Santa Cruz County Bldg. etc. Trades
Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1517.) To run with
the land, a covenant must touch and concern land, which means it must affect the parties
as owners of the particular estates in land or relate to the use of land. (Anthony v. Brea
Glenbrook Club (1976) 58 Cal.App.3d 506, 510 (Anthony).) "The primary characteristic
of a covenant running with the land is that both liability upon it and enforceability of it
pass with the transfer of the estate. The benefits or burdens pass by implication of law
rather than under principles of contract." (Ibid.)
5
B. The Building Restriction Is Not a Covenant Running with the Land Under Section 1468
The former version of section 1468 that was effective in 1946 provided: "A
covenant made by the owner of land with the owner of other land to do or refrain from
doing some act on his own land, which doing or refraining is expressed to be for the
benefit of the land of the covenantee, and which is made by the covenantor expressly for
his assigns or to the assigns of the covenantee, runs with both of such parcels of land."
(Stats. 1905, ch. 450, § 1, p. 610.) The Legislature amended section 1468 in 1968 and
1969 to make covenants that run with the land analytically closer to equitable servitudes
and to make the statute applicable to covenants between a grantor and grantee, as well as
between separate landowners. (Citizens for Covenant Compliance v. Anderson (1995) 12
Cal.4th 345, 354 (Citizens).) However, those amendments "have been held to apply only
to covenants postdating their enactment." (Ibid.) Accordingly, our determination of
whether the building restriction at issue in this case is a covenant running with the land
under section 1468 is governed by the former version of section 1468 in effect in 1946.
We conclude that the building restriction is not a covenant running with the land
under the former version of section 1468 because that statute "only applied to a covenant
'made by the owner of land with the owner of other land,' and not to a covenant between a
grantor and a grantee." (Citizens, supra, 12 Cal.4th at p. 353; Marra v. Aetna
Construction Co. (1940) 15 Cal.2d 375, 377-378 (Marra).) Although Fleet and the
Donovans were adjoining landowners before Fleet severed Lot 4 and conveyed a portion
of it to the Donovans, the subject building restriction is contained in the grant deed by
6
which Fleet made that conveyance. The building restriction was not a covenant
concerning other parcels that Fleet and the Donovans owned before or after that
conveyance. Because the covenant at issue in this case is contained in a grant of real
property and predates the amendments to the original version of section 1468, it is
governed exclusively by section 1462. (Marra, at p. 377 ["Covenants . . . contained in a
grant in fee of real property, are governed solely by section 1462 . . . ."].)
C. The Building Restriction Is a Covenant Running with the Land Under Section 1462
Section 1462 provides: "Every covenant contained in a grant of an estate in real
property, which is made for the direct benefit of the property, or some part of it then in
existence, runs with the land." "The decisions have interpreted [section 1462] to mean
that a burdensome covenant contained in a deed which in no way benefits the property
conveyed is not binding at law upon the transferees of the grantee." (Marra, supra, 15
Cal.2d at p. 378.) Conversely, when a covenant benefits, and does not burden, the
property conveyed, it runs with the land under section 1462 and is binding on transferees
of the grantee. (Citizens, supra, 12 Cal.4th at pp. 353, 368.) Whether a covenant in a
grant of real property benefits the conveyed property so as to run with the land under
section 1462 is determined in light of the conditions existing at the time of the grant.
(Robertson v. Nichols (1949) 92 Cal.App.2d 201, 205.) The fact that the covenant does
not mention "assigns" is immaterial; the question must be determined from the nature of
the covenant itself. (Sacramento Suburban Fruit Lands Co. v. Whaley (1920) 50
Cal.App. 125, 133 (Sacramento Suburban Fruit).)
7
The general test for determining whether a covenant runs with the land under
section 1462 is whether the covenant "is 'made for the direct benefit of the property.' The
phrase 'made for the direct benefit of the property' means, among other things, 'any
covenant which affects the title to real property or any interest or estate therein of the
covenantee. . . . [I]f the covenant is one which concerns the land itself, or in any manner
or measure affects its title or any interest therein, then it is, within the meaning of . . .
section 1462, "made for the direct benefit of the real property" to which it relates.' "
(Carlson v. Lindauer (1953) 119 Cal.App.2d 292, 304-305.) The meaning of the phrase
"direct benefit to the property" is not restricted to physical benefit that directly accrues to
the land from the covenant. (Richardson v. Callahan (1931) 213 Cal. 683, 689;
Sacramento Suburban Fruit, supra, 50 Cal.App. at p. 130.) Courts interpreting section
1462 " 'have uniformly adopted the view that if the covenant tends to enhance or increase
the value of the land, it is a direct benefit within the meaning of the [statute] and therefore
runs with the land.' " (Anthony, supra, 53 Cal.App.3d at p. 511.)
The building restriction in the present case touches and concerns the land because
it relates to the use of the restricted land. (Anthony, supra, 58 Cal.App.3d at p. 510.) The
restriction directly benefits the Sharafis' property that Fleet conveyed to the Donovans in
1946 because it is the type of restriction that naturally enhances the market value of any
property adjoining the restricted property. (Mock v. Shulman (1964) 226 Cal.App.2d
263, 266 [restriction imposed against all lots in a tract against growing any hedge over six
feet in height within 15 feet of boundary line of adjoining lot was for the mutual benefit
of the entire tract and the owners of the separate lots therein]; Whitinsville Plaza, Inc. v.
8
Kotseas (Mass. 1979) 390 N.E.2d 243, 247 [the purpose of all building restrictions is to
enhance the market value of the promisee's land].)
The Selfs argue that the building restriction is not a covenant running with the land
under section 1462 because it burdens their portion of Lot 4, citing the rule that "[u]nder
section 1462, a [covenant] that benefits the property may run with the land, but not one
that burdens the property." (Citizens, supra, 12 Cal.4th at p. 353.) However, "the
property" referenced in the Citizens court's articulation of the rule is the property
conveyed by the grant containing the covenant, not property retained by the grantor.
Section 1462 states that "[e]very covenant contained in a grant of an estate in real
property, which is made for the direct benefit of the property, or some part of it then in
existence, runs with the land." (Italics added.) The property referenced in the phrase
"which is made for the direct benefit of the property" can only be the property granted
(i.e., conveyed) referenced in section 1462's opening clause because the statute does not
refer to any other property. "It is . . . 'generally presumed that when a word is used in a
particular sense in one part of a statute, it is intended to have the same meaning if it
appears in another part of the same statute.' " (Delaney v. Baker (1999) 20 Cal.4th 23,
41.)
Thus, on its face, section 1462 applies when the covenant contained in a grant
deed directly benefits the conveyed property. Nothing in the statute defeats its
application where a covenant benefitting the conveyed property correspondingly burdens
property retained by the grantor or some other property. As the Supreme Court stated in
Marra, "[t]he decisions have interpreted [section 1462] to mean that a burdensome
9
covenant contained in a deed which in no way benefits the property conveyed is not
binding at law upon the transferees of the grantee." (Marra, supra, 15 Cal.2d at p. 378,
italics added; Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal.App.3d
964, 972 ["Only the benefit of a covenant runs; covenants which burden the
covenantee/grantee's land will not bind subsequent transferees." (Italics added.)];
Standard Oil Co. v. Slye (1913) 164 Cal. 435, 442 [covenant in a lease to renew the lease
for an additional term runs with the land under section 1462 "because obviously a
covenant for a renewal of a lease is for the direct benefit of the estate granted" (italics
added)]; Los Angeles Terminal Land Co. v. Muir (1902) 136 Cal. 36, 41-42 (Muir)
[covenant did not run with the land under section 1462 because it "was not made for the
benefit of the lot conveyed, but purported to impose a burden thereon by restricting its
use" (italics added)].)
The rule that a covenant does not run under section 1462 if it burdens "the
property" does not apply to the building restriction at issue in this case because the
restriction burdens only the land that Fleet retained; it does not burden the land she
conveyed by the deed containing the building restriction. The building restriction is a
covenant running with the land under section 1462 because it is contained in a grant of
real property and directly benefits the land conveyed.5
5 In Oceanside Community Assn. v. Oceanside Land Co. (1983) 147 Cal.App.3d 166 (Oceanside), a developer of 932 residences on individual lots recorded CC&R's restricting property it owned adjacent to the residential development to be used as a golf course. (Id. at p. 172.) This court decided the golf-course restriction was enforceable as a covenant running with the land under the current version of section 1468 as to some 10
The Selfs argue that the building restriction is not enforceable as a covenant
running with the land because it does not describe the dominant tenement — i.e., the
property benefitted by the restriction. Among other authority, the Selfs cite the Citizens
court's statement that in light of the statute of frauds, for restrictions to be enforceable
"there ' " 'should be some written evidence' " ' indicating what property was affected by the
restrictions." (Citizens, supra, 12 Cal.4th at p. 358.) The Selfs also cite MacDonald
Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693 (MacDonald) for the
proposition that a deed restriction cannot be enforced as a covenant running with the land
if the deed contains no particular description of the dominant tenement to be benefitted.6
homeowners and as an equitable servitude as to others. (Oceanside, at pp. 174-175.) In light of that determination, it was unnecessary for the Oceanside court to address whether the restriction was also a covenant running with the land under section 1462. Nevertheless, the court opined that the restriction was not enforceable under section 1462 because although it benefited the homeowners' properties, it burdened the developer's property. (Oceanside, at p. 174.) The court cited Marra, supra, 15 Cal.2d 375, and Muir, supra, 136 Cal. 36, for the proposition that a covenant does not run with the land under section 1462 if it burdens property. (Oceanside, at p. 174.) However, both Marra and Muir involved covenants that burdened only land conveyed by a grant deed and not land retained by the grantor. Neither case supports the Oceanside court's apparent view that a restriction in a grant deed cannot be a covenant running with the land under section 1462 if it burdens any other property. Because the Oceanside court's cursory analysis of the applicability of section 1462 was unnecessary to its decision, and its cited authority does not support its conclusion on that point, we do not view Oceanside as persuasive authority for the proposition that a covenant in a grant of real property that directly benefits the conveyed property does not run under section 1462 if it correspondingly burdens property the grantor retains.
6 Although the MacDonald court stated that the plaintiffs in that case were "technically correct at law" in arguing that the covenant in question did not particularly describe the property benefitted by the covenant, it nevertheless decided the covenant was enforceable as an equitable servitude. (MacDonald, supra, 72 Cal.App.3d at pp. 699-701.) 11
However, the requirement addressed in MacDonald that the instrument containing a
covenant must particularly describe the land benefitted (and the land burdened) by the
covenant is a requirement under the current version of section 1468, subdivision (a); it is
not a requirement under section 1462. (MacDonald, at p. 699.)7
In any event, we conclude that the 1946 grant from Fleet to the Donovans satisfies
the requirement that "there ' " 'should be some written evidence' " ' indicating what
property was affected by the restrictions." (Citizens, supra, 12 Cal.4th at p. 358.) The
1946 grant deed specifically described the portion of Lot 4 retained by Fleet and
burdened by the building restriction, and sufficiently described the portion of Lot 4 being
conveyed. Although the building restriction did not specifically state that the conveyed
7 Before the current version of section 1468 was enacted, the courts in Chandler v. Smith (1959) 170 Cal.App.2d 118 and Berryman v. Hotel Savoy Co. (1911) 160 Cal. 559 decided that building restrictions imposed on the land conveyed in original grant deeds were not covenants running with the land in part because the deeds did not describe land to be benefitted by the covenants. However, these cases are inapposite. Unlike the building restriction at issue in the present case, the restrictions in Berryman burdened, rather than benefitted, the land of the grantee, and nothing in the deed gave notice to subsequent purchasers that the original grantor owned other property to be benefitted by the restrictions. Consequently, a subsequent purchaser was entitled to read the restrictions as not creating a covenant or servitude that would pass with the land. (Berryman, at pp. 564-565.) Similarly, the restrictions in Chandler burdened rather than benefitted the property conveyed, and it did not "appear that the restrictions . . . were inserted for the benefit of grantors' adjoining land." (Chandler, at p. 120.) In addition, the deed in Chandler expressly provided that title would not be forfeited or impaired for violation of the restrictions. Based on those facts, the Chandler court concluded that "the deed created a mere personal burden adhering exclusively to the original covenantor." (Ibid.) Unlike the deeds in Berryman and Chandler, the recorded 1946 deed in this case gives notice to subsequent purchasers of the property burdened by the building restriction (the property that Fleet retained) that Fleet conveyed adjoining property to be benefitted by the restriction.
12
portion of Lot 4 was the property intended to be benefitted by the building restriction, this
intent is reasonably clear from the fact that the only properties referenced in the deed are
the portion of Lot 4 retained and burdened by the building restriction and the portion of
Lot 4 conveyed. We construe the building restriction as conferring a direct benefit on the
parcel conveyed, which the Sharafis now own.
The Selfs additionally argue that the building restriction is not a covenant running
with the land because the 1946 grant deed does not express a joint intention that the
restriction be binding on the grantor's and grantees' successors or assigns. The Selfs cite
Oceanside for the proposition that a baseline requirement for a restrictive covenant to run
with the land is an expression in the instrument in question that the restriction will be
binding on the parties' successors and assigns. However, as the Oceanside court noted,
the requirement a "covenant must state it is binding on the assigns of the covenantor" is a
requirement under the former version of section 1468. (Oceanside, supra, 147
Cal.App.3d at pp. 174-175 & fn. 4.)8 It is not a requirement under section 1462.9
8 As noted, the original version of section 1468 provided: "A covenant made by the owner of land with the owner of other land to do or refrain from doing some act on his own land, which doing or refraining is expressed to be for the benefit of the land of the covenantee, and which is made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with both of such parcels of land." (Stats. 1905, ch. 450, § 1, p. 610, italics added.)
9 At oral argument, the Selfs argued that a covenant under section 1462 must also state it is binding on heirs and assigns (i.e., future owners) of the covenantor, citing Citizens, supra, 12 Cal.4th at pp. 353-354. However, Citizens does not support that argument. On page 353, the Supreme Court set forth general background information about covenants running with the land. Regarding section 1462, the court noted that before the amendments to section 1468 in 1968 and 1969, section 1462 and 1468 "were 13
We conclude the building restriction in the 1946 deed is a covenant running with
the land under section 1462.10 As a statutory covenant running with the land, by
operation of section 1460 the building restriction "bind[s] the assigns of the covenantor
and . . . vest[s] in the assigns of the covenantee, in the same manner as if they had
personally entered into them." (§ 1460.) Accordingly, it is enforceable against the
portion of Lot 4 that the Selfs now own. Where, as here, it appears from the record that
there is only one proper judgment on undisputed facts, we may direct the trial court to
enter that judgment. (Code Civ. Proc., § 43; Conley v. Matthes (1997) 56 Cal.App.4th
1453, 1459, fn. 7.)
written and interpreted very narrowly." (Citizens, at p. 353.) The Citizens court went on to note that "[u]nder section 1462, a [covenant] that benefits the property may run with the land, but not one that burdens the property." (Ibid.) The Citizens court noted that the covenants (CC&R's) at issue in that case were not enforceable as covenants under section 1462 because they burdened as well as benefitted the property conveyed. (Citizens, at p. 368.) The Citizens court did not address whether a covenant under section 1462 must state that it binds later owners, nor did it address that requirement in former section 1468. Regarding future owners, in its general background discussion the Citizens court simply noted, in accordance with section 1460, that "[a] covenant is said to run with the land if it binds not only the person who entered into it, but also later owners and assigns who did not personally enter into it." (Citizens, supra, 12 Cal.4th at p. 353, citing § 1460 and Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536, 1543.)
10 In light of our conclusion that the building restriction is a covenant running with the land under section 1462, we need not consider whether it is also enforceable as an equitable servitude. 14
DISPOSITION
The judgment in favor of respondents is reversed. The trial court is directed to
enter judgment in favor of appellants on their cross-complaint and against respondents on
their first amended complaint. Appellants are awarded their costs on appeal.
IRION, J.
WE CONCUR:
NARES, Acting P.J.
MCDONALD, J.
15
Filed 10/11/13 COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THOMAS WILLIAM SELF et al., D061181
Plaintiffs, Cross-defendants and Respondents, (Super. Ct. No. 37-2010-00101291- v. CU-OR-CTL)
SHAHRAM SHARAFI et al., ORDER CERTIFYING OPINION FOR PUBLICATION Defendants, Cross-complainants and Appellants.
THE COURT:
The opinion filed September 20, 2013, is ordered certified for publication.
NARES, Acting P.J.
Copies to: All parties
16
AI Brief
AI-generated · verify before citing
Holding. A building restriction contained in a 1946 grant deed is enforceable as a covenant running with the land under Civil Code section 1462 because it directly benefits the conveyed property, even if it burdens the property retained by the grantor.
Issues
Whether a building restriction in a 1946 grant deed constitutes a covenant running with the land under Civil Code section 1462.
Whether a covenant that burdens property retained by the grantor can run with the land under Civil Code section 1462 if it benefits the conveyed property.
Disposition. reversed
Quotations verified verbatim against the opinion
“Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.”
“The building restriction is a covenant running with the land under section 1462 because it is contained in a grant of real property and directly benefits the land conveyed.”