Boston Archdiocese Restrictive Covenants

Jack Sullivan has an extensive story about restrictive covenants that the Boston Archdiocese and the Springfield Archdiocese place on property that they sell in the summer issue of CommonWealth.  Sullivan lists some of the restrictive covenants.  One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials.  One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography.  A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

Property professors will love this -- and I'm going to use some of these examples in my property class this fall. There are a ton of interesting things to talk about here.  I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club.  And some of these are understandable when the church is thinking about protecting its schools, such as the restriction of property for use by a charter school.  I'd want to look at Massachusetts competition law on this; my guess would be that's a reasonable restriction, but I'd want to know a lot more about the neighborhood and alternative property the charter school.  This restriction on use might be struck down as unreasonable.  

What interests me in particular are the restrictions on abortion.  Couple of things to think about here.  The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement.  Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.  (I get the restatement's references to constitutional rights in this private law context is odd and I'm always somewhat confused by it.)  But even if Massachusetts doesn't follow § 3.1, I would be surprised if a court thought that restriction were enforceable.  That seems like an expansive intrusion the rights of the new owner, the kind that courts would likely think goes too far.  Another problem is that the benefit is probably not even appurtenant to any surrounding property.  That seems like the benefit's probably in gross and thus the burden is unlikely to run.  I looked at a couple of these deeds a few months ago and they say that the restrictions are for the benefit of the property the church retains, but in some cases that property is miles away from the property that's being sold.  And then there's the issue of Shelley v. Kraemer. Assuming Shelley continues as good law, the enforcement of the covenant through the courts would be state action.  This would be subject to an analysis the same as a municipality passing a zoning ordinance that restricted abortion, I would think.  Perhaps it could pass, but I'd be very skeptical.

But my guess is that these restrictions, as so many, are really more about making a statement about the seller's values than thinking that they're really going to be enforced.  Anyway, lots of things to talk about in there and just in time for planning the fall property class!

Comments

[Matthew Reid Krell]

I am SO glad you saw the Shelley issues in those things. I see Shelley as a backdoor to prevent a lot of private abuses of fundamental rights. I'm just unsure of the right remedy to invoke; is it a mandamus? Or a prohibition? Do you have to lose once and then invoke the rule at a higher court (that seems unlikely, given the rule of preserving error for review)? Is there some other common-law writ that might lie?

[Ralph D. Clifford]

Constitutional challenges may not be the only way to go. One of the requisites for a valid real covenant is that it must "touch and concern" the land. I could see a court ruling that some of the restrictions are too far from land use to be enforceable. If the court examines the purpose of the covenant, some of them seem to be for the purpose of implementing Church dogma rather than a bona fide attempt to regulate land use.

Another issue that could be relevant is whether the Church is remaining as a land owner in the neighborhood of the properties transferred subject to the covenants. If not, as the courts do not as easily enforce covenants in gross, another non-constitutional escape valve may exist.

The remedy issue raised by Matthew is problematic. What Shelley said was that the state courts could not enforce a racially restrictive covenant because court action would be state action under the 14th Amendment. The existence of the covenant does not violate the constitution in itself (although it would now run afoul of the Fair Housing Act). I suppose that if the Church threatened to seek enforcement of one of the covenants, a writ of prohibition might be sought to prevent the courts from enforcing the covenant, but I suspect the better approach is to raise the constitutional matter as a defense to the action. Similarly, without the threat of litigation, bringing a declaratory judgment action would raise standing issues.