A developer properly recorded a declaration of restrictive covenants for a new residential subdivision. One covenant prohibits the construction of any fence exceeding six feet in height. A purchaser bought a lot in the subdivision with notice of the covenant and subsequently built an eight-foot fence on their property. What is the most likely legal outcome?
The restrictive covenant is unenforceable as it only applies to the original developer.
The purchaser is liable for monetary damages but cannot be compelled by injunction to remove the fence.
The restrictive covenant is unenforceable because a height restriction is an unreasonable restraint on alienation.
The restrictive covenant is enforceable against the purchaser.
For a restrictive covenant to be enforceable as an equitable servitude against a subsequent purchaser, there must be intent for the covenant to run with the land, it must touch and concern the land, and the subsequent purchaser must have notice of it. Here, the covenant was properly recorded, providing constructive notice, and it binds subsequent owners like the purchaser, making it enforceable. A height restriction is a common and generally reasonable use restriction, not an unreasonable restraint on alienation. The covenant is intended to bind all subsequent owners, not just the original developer. The typical remedy for violation of an equitable servitude is an injunction to enforce the covenant, not merely monetary damages.
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