RE: Home Schooling and Real Covenants

[Rick Duncan]

Ed: Of course, you are right that the law of covenants running is ancient and zoning relatively modern. The early English cases did not allow A & B to attach a running covenant to a Fee Simple conveyance. The law of course changed in this respect, but it took a body of law to allow A & B to impose their promises respecting land on non-covenanting future owners.

 

Whether the chicken or the egg came first, though, the law of covenants is a kind of zoning regime in which the state regulates C's use of his own land even though C is not a covenanting party. Therefore, under a broad but reasonable construction of RLUIPA, when the law of covenants restricts the religious use of land, it constitues a land use regulation that substantially burdens a claimant's free exercise.

 

Long before we get to RLUIPA, HSLDA has arguments that a covenant forbidding home schoolin! g is not an enforceable covenant. Suppose the covenant specifically provided that "B and his assigns covenant that this land shall not be used to home school the children of B or his assigns." Would this be an enforceable covenant against future owner, C? It is very different from one prohibiting commercial use of residential land. It says residential land can not be used for a common residential purpose, raising and directing the upbringing of children. It may be contrary to public policy (or not touch and concern land).

 

In the actual case we have been discussing, could the HOA enforce the covenant to prevent public schooled Johnny from having friends over for a study group session? Would it matter if Mom (or Moms) were acting as a tutor for the study group? Or could Johhny have the same number of friends over for frequent basketball games using their driveway hoop? Would it matter if it were a father-son game?

 

Chee! rs, Rick Duncan

Ed Darrell <[EMAIL PROTECTED]> wrote:

That's an interesting way to look at it, as a delegation of zoning authority.  Help me out on the history, though:  My recollection is that the covenanting practices came first, and that zoning -- at least in the U.S. -- is a function of the police powers of local government, with a smattering of nuisance thrown in for spice.  It would be more accurate to look at it as zoning being an outgrowth of the rules that require landowners to be good neighbors, rather than the other way around. 

 

For hypotheticals for classroom use, it might be fun to have some good contests between religiously-dedicated land and mineral rights (and I suppose the litigation over Black Mesa in Arizona might be the case). 

 

Way behind on keeping up with this area of law,

Ed Darrell

Dallas