Steve: The difference between a typical contract case and the law of covenants running with the land is that in the latter case the law provides authority to enable A & B to restrict the liberty of C, D, and E (future landowners who did not agree to the covenant).
If A agrees with B not to use Blackacre as a home school, there is no major liberty issue when A breaches his agreement and B sues to enforce the restriction that A agreed to. But under the law of covenants, when A sells Blackacre to C, a non-covenanting party, the covenant "runs with the land" and requires C to perform a promise that C never made.
The law of covenants allows A & B to attach their covenant to land and enforce it against non-covenanting parties. Therefore, it is really a kind of zoning law in which the state delegates to the original covenanting parties the power to promulagte the zoning
restrictions that will govern future non-covenanting andowners. This matters for purposes of RLUIPA, because I argue that the body of law (the law of covenants) that allows enforcement of covenants against non-covenanting parties is a land use regulation as defined in RLUIPA (and state action for purposes of the Constitution).
Cheers, Rick Duncan
Steven Jamar <[EMAIL PROTECTED]> wrote:
Rick,Doesn't the same logic apply to contract law? Contracts are enforceable under law, like restrictive covenants, but are essentially private matters. Some covenants are illegal (no blacks allowed, for example), and so are some contracts (slavery, for example). But this does not mean that they are the same as legislation.Steve
--Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]"The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires."Walter Lippmann
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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