A rancher subdivides a recently annexed tract into 30 two-acre lots and records a subdivision plan with a single-family restriction on each lot. After selling the first lot, the rancher leaves the remaining lots to be sold. A city later imposes a two-story height restriction that is not included in any deed or the subdivision plan. Which statement is correct regarding enforceability of the two-story restriction against the private owners who bought later?

A rancher subdivides a recently annexed tract into 30 two-acre lots and records a subdivision plan with a single-family restriction on each lot. After selling the first lot, the rancher leaves the remaining lots to be sold. A city later imposes a two-story height restriction that is not included in any deed or the subdivision plan. Which statement is correct regarding enforceability of the two-story restriction against the private owners who bought later?

• A. It binds as part of a common scheme if the rancher intended it at the time of sale.
• B. The buyers are bound because they knew of the restriction.
• C. The restriction cannot bind the private owners because it is not contained in the deeds or subdivision plan.
• D. Private restrictions can be enforced because city rules permit.

Answer: (C)

The key idea is how private land-use restrictions run with the land. A private covenant or restriction only binds later buyers if it was created in a deed or in a recorded subdivision plan (or arises from a properly recorded common‑scheme instrument with notice). Simply having the developer intend to impose a restriction, or the city later imposing a restriction, does not by itself make that restriction binding on subsequent purchasers unless the restriction is actually contained in the deeds or the subdivision’s recorded plan and notice was given. In this situation, the two-story height limit was imposed by the city and is not included in any deed or the subdivision plan. That means it isn’t a private covenant running with the land. A buyer who purchased later cannot be bound by a private restriction that isn’t part of the deed or plan, even if the buyer knew of some private expectation or the developer’s original intention. The city’s rule, while it may govern use of the property as a matter of public zoning, does not create a private covenant enforceable against the private owners in the form of a restriction not contained in the recorded instruments.

The key idea is how private land-use restrictions run with the land. A private covenant or restriction only binds later buyers if it was created in a deed or in a recorded subdivision plan (or arises from a properly recorded common‑scheme instrument with notice). Simply having the developer intend to impose a restriction, or the city later imposing a restriction, does not by itself make that restriction binding on subsequent purchasers unless the restriction is actually contained in the deeds or the subdivision’s recorded plan and notice was given.

In this situation, the two-story height limit was imposed by the city and is not included in any deed or the subdivision plan. That means it isn’t a private covenant running with the land. A buyer who purchased later cannot be bound by a private restriction that isn’t part of the deed or plan, even if the buyer knew of some private expectation or the developer’s original intention. The city’s rule, while it may govern use of the property as a matter of public zoning, does not create a private covenant enforceable against the private owners in the form of a restriction not contained in the recorded instruments.