The law permits restrictions as to the use of the land so long as the restriction is not against public policy.
Restrictions in the use of land are not encouraged by the law102 but are nevertheless permitted so long as they are not against public policy. Thus, there may be restrictions as to what sort of buildings shall be erected, how far from the lot line buildings shall be placed, that the building shall cost a minimum figure or be of a certain type, that certain industries shall never be conducted there, etc. Some restrictions are, however, not permitted, for instance when they are for the purpose of creating a monopoly, etc.103
The restriction in the deed may be by way of a covenant or condition, the breach of which will defeat the title.
The use of the land may be regulated by the grantor by way of a covenant, the breach of which will give an action for damages and which will be restrained by injunction; or it may be by way of a condition, that if the land is used in the way prohibited the title shall thereupon revert to the grantor or his heirs. The breach of the covenant will be enjoined or an action for damages will lie on account of it. The breach of the condition operates to cause a forfeiture of title.
102. Hutchinson v. Ulrich, 145 111. 336.
103. Burdel v. Grandi, 14 L. R. A. (N. S.) (Cal.) 909.
A restriction will create a condition defeating the title only in case it is expressly declared to be a condition with the right of re-entry by the grantor and his heirs. Calling a restriction a condition does not in itself make it such.
A court does not favor forfeitures of estates as this is a harsh remedy, and although it permits an estate to be granted upon a condition the non-observance of which will defeat the title, yet the intent of the parties must be plain, and it will enforce a restriction as a covenant and not a condition wherever possible.104 Thus if it is stated in a deed that the land is granted on the express condition that no flat building shall ever be erected there, the parties might not mean thereby that the breach of that condition would result in a forfeiture of the estate but only mean that the grantee should be subject to an injunction in case he attempted to break the condition or be subject to damages for actual breach. Accordingly the court will call a restriction a covenant rather than a condition wherever possible, even though the word "condition" may have been used, provided nothing further is stated to show that the restriction was meant as a condition. It is therefore necessary in most states for the grantor to declare somewhat as follows: "That this estate is granted upon the condition that no saloon shall ever be conducted upon the premises and in case of breach of this condition the title shall revert to the grantor, his heirs, or assigns, and he shall have the right to reenter and be possessed as of his former estate."
104. Post v. Weil, 115 N. Y. 361.
Furthermore the cases hold that the estate is not defeated until the grantor does actually make a re-entry.105
Restrictions as to the use of land may be enforced against the grantee and all succeeding purchasers.
A restriction upon the use of land may be enforced against the grantee or his heirs or any person who by descent, will or deed comes into the ownership of the property. Assuming that the restriction is on record or known to the party involved, he takes subject to the restriction. It is not necessary that the restriction be repeated in every successive deed, but a party purchasing or getting an estate in any way is bound by the record and the grantor may thus govern the restriction no matter into whose hands the estate may pass.
A restriction may be enforced by the grantor or by anyone for whose benefit the restriction was made.
Restrictions are usually made for the benefit of certain other property, as where a person lays out city lots and makes a building restriction upon each of them. Here the restriction upon each lot is in favor of all the other lots in the same subdivision or block, and subsequent owners of these lots or any of them may enforce the restriction against the owner of any lot. Otherwise restriction would be of no value. It has been created for the purpose of preserving the character of the neighborhood and may be enforced for this purpose by anyone affected.
On account of the fact that the court does not favor restrictions upon the use of land the right to enforce such restrictions is easily waived or lost and may be expressly waived by the parties entitled to enforcement.
A person entitled to the right to enforce a restriction may see fit to expressly waive it by written agreement or otherwise. So the right may be lost by conduct or by change of situation. The right must be strictly and promptly enforced; otherwise it will be considered as having been waived.106 Thus if one owns a lot in a block divided into lots upon which there is a building restriction he will lose the right to enforce the restriction if he permits his neighbors or anyone of them to break the restriction without protest. Thus if A owns lot No. 1, and B owning lot 9 breaks a building line restriction without A's protest A will usually be held to have waived the right in respect to lot 2 or 3, etc., and certainly has waived it in respect to lot 9 by not proceeding on first notice to enjoin B from breaking the restriction.
So where the change in the neighborhood is so great that the original purpose and value of the restriction has become lost there will be a loss of the right to enforce the restriction, especially in a court of equity; for instance, if the neighborhood was originally intended as a residence district, it may, owing to the encroachment of business, have lost its value for that purpose. Here no valuable right would be protected by the enforcement of the restriction and enforcement would mean the prevention of improvement along the lines of development in the neighborhood. A court of equity will not enforce the restriction where by change of circumstances, it is no longer of value.
106. Evertsen v. Gertsenberg, 186 111. 344.
Thus, in a very recent Illinois case, there were covenants not to build beyond a certain line, and complainant brought suit to prevent defendant from violating the covenant. The defendant showed that other parties in the same block had violated the covenant, without protest, and furthermore that the erection of an elevated railway had changed the character of the neighborhood. The court refused an injunction on these grounds. Incidentally, it held that the erection of bay windows, porches and the like, over a building line, is a breach of the covenant.107
107. Knelp v. Schroeder, 255 111. 621.