Archive for the 'Property' Category

Mississippi has taken another paternalistic step forward. This week, the City of Jackson voted to ban smoking in all restaurants. Reading through the comments on the article, and based on conversations I’ve heard, there appears to be a general concern for children underlying the support for such a measure. Says one commenter:

I am all for a total ban on smoking, but I think to be reasonable that the law should ban smoking anywhere that children may be present. It should be allowed in stand-alone bars, nightclubs, and casinos. It is fair that smokers have somewhere to go, but they should not be allowed to smoke around children. And I should not be forced to keep my child at home to avoid their smoke. It is time for smokers to have some responsibility.

This is a very interesting statement. It implies that tobacco smoke and children should not exist in the same place at the same time. Assuming for the moment that this is true, why prefer children over smoke in Red Lobster? If smoke is irritating, what about screaming, crying babies and poorly behaved children? It’s almost impossible to relax and enjoy a good cigar after dinner with all the annoying children carrying on. So again, why not pass a law prohibiting children from restaurants? Because it would be absurd, that’s why.

There once was a day when politicians and judges would refuse to hear these issues, preferring to let the market self-regulate. In this age of state paternalism, that seems to be an antiquated notion. In the old days, property owners had the right to allow or prohibit perfectly legal behavior on their premises. If you didn’t like smoke and a non-smoking section wasn’t good enough for you, you could register your displeasure and not come back. If enough people did the same, the restaurant would lose business and be forced to reassess its position.

Likewise, if a restaurant voluntarily prohibited smoking and you like to enjoy a cigar or pipe after dinner, you could register your displeasure and eat elsewhere. In either case, property owners were free from government intrusion and the market would regulate itself.

But not anymore. Now, if there’s something that annoys you, you don’t have to be content to merely utter “there oughta be a law…” Now, you can actually get one.

In considering restrictive covenants in land deeds, there are two general ways to approach the underlying legal theory. First, the contract theory of equitable servitudes looks at a servitude or a covenant as a device creating a contractual relationship between the parties. So if O conveys a parcel of land to A by a deed stating that the land may only be used for residential, single-family housing, under the contract theory, the deed operates as a contract between O and A. At this point, the normal principles of contract law would apply to the transaction.

The other approach is the property theory, which would view the same deed not as a legal contract, but as a promise enforced in equity. Under this view, the deed does not create a contractual relationship between two parties but rather, it places a figurative asterisk on the land itself. Instead of A contracting to build nothing but a residential, single-family dwelling on the parcel, the parcel has instead been more or less permanently earmarked for that purpose, regardless of who may subsequently posses it.

The vast majority of legal scholars and law courts have adopted the property theory. The harshness of this approach can be seen in cases such as Western Land Co. v. Truskolaski, in which the defendant land company in 1941 subdivided a 40-acre lot, placing a restrictive covenant on each subdivided lot stating that they were to be used to residential purposes only, and forbidding their use for mercantile businesses. 495 P.2d 624 (Nev. 1972). Almost thirty years later, the very company which had originally owned, subdivided, and restricted the lots, sought to build a shopping center on several of those adjoining lots, which it still owned. The individual owners of the other lots filed suit seeking to enjoin the company from doing so, citing the restrictive covenants which the defendant had itself created. The court held that the covenant still stood and that the land company could not build a shopping center there.

Against this backdrop we see the Restatement (Third) of Property, Servitudes § 3.2 (2000) which appears to be swinging the balance the other direction. It rejects out of hand the common law analyses of “touch” and “concern” which are crucial questions in determining the validity of real covenants, opting instead for a default rule holding all covenants to be valid and giving preference to the intent of the parties. Furthermore, the Restatement declares invalid any servitude or covenant which “is illegal or unconstitutional or violates public policy.” Do these criteria sound familiar? They should; they’re foundational in contract law.