that “[a] servitude beneficiary may give a partial release as well as a complete release.... [However,] [r]elease by one beneficiary of a servitude cannot affect the interests of the other beneficiaries of the servitude.” This rule was recognized in the Alabama case of McCown v. Gottlieb, 465 So.2d 1120 (Ala.1985). At issue in McCown was a restrictive covenant found in the deed to each of the six lots in a residential subdivision which prohibited the owners of each lot in the subdivision from subdividing their lots.
The Restatement (Third) of Property (Servitudes) § 7.3 (2000) provides that "[a] servitude beneficiary may give a partial release as well as a complete release. . . . [However,] [r]elease by one beneficiary of a servitude cannot affect the interests of the other beneficiaries of the servitude." This rule was recognized in the Alabama case of McCown v. Gottlieb, 465 So. 2d 1120 (Ala. 1985). At issue in McCown was a restrictive covenant found in the deed to each of the six lots in a residential subdivision which prohibited the owners of each lot in the subdivision from subdividing their lots.
Specifically, the bankruptcy court concluded that, because HGC did not represent every Heatherwood homeowner at the time the Agreement between HGC and FCB was entered, the implied restrictive covenant could not have been destroyed by the Agreement. See McCown v. Gottlieb, 465 So.2d 1120, 1123 (Ala.1985) (a deed from one lot owner in a six-lot subdivision could not void the covenant held by the other five lot members). Fifth, in considering the doctrine of changed circumstances, the bankruptcy court relied on various factual findings in determining that the homeowners's benefit from the continued existence of the covenant outweighed the detriment borne by FCB and Heatherwood.
"The [developer] cite[s] cases holding that owners of property subject to restrictive covenants have mutual easements appurtenant. McCown v. Gottlieb, 465 So. 2d 1120 (Ala. 1985) ; Callahan v. Weiland, 291 Ala. 183, 279 So. 2d 451 (1973) ; Allen v. Axford, 285 Ala. 251, 231 So. 2d 122 (1969) ; Hall v. Gulledge, 274 Ala. 105, 145 So. 2d 794 (1962) ; Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928). The [developer] cite[s] several cases for the proposition that ‘In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party.’
The Clouds cite cases holding that owners of property subject to restrictive covenants have mutual easements appurtenant. McCown v. Gottlieb, 465 So.2d 1120 (Ala. 1985); Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 (1973); Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1969); Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962); Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928). They cite several cases for the proposition that "In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party."
A declaration in the conveying instrument that restrictive covenants are to run with the land is “a significant factor” in determining that the grantor intended the restriction to benefit the land and not just his personal interests. SeeMcCown v. Gottlieb, 465 So.2d 1120, 1123 (Ala.1985) (quoting Wright v. Cypress Shores Development Co., 413 So.2d 1115, 1124 (Ala.1982), citing Golian v. Polhironakis, 390 So.2d 187 (Fla.Dist.Ct.App.1980)). Whether “a general scheme and plan of a subdivision is present is [also] an important factor to consider in determining the purpose and intent of the restriction.”
A declaration in the conveying instrument that restrictive covenants are to run with the land is "a significant factor" in determining that the grantor intended the restriction to benefit the land and not just his personal interests. SeeMcCown v. Gottlieb, 465 So.2d 1120, 1123 (Ala.1985) (quoting Wright v. Cypress Shores Development Co., 413 So.2d 1115, 1124 (Ala.1982), citing Golian v. Polhironakis, 390 So.2d 187 (Fla.Dist.Ct.App.1980)). Whether "a general scheme and plan of a subdivision is present is [also] an important factor to consider in determining the purpose and intent of the restriction."
See 5 R. Powell, Real Property § 677, pp. 60-118 — 60-122; Hein v. Lee, 549 P.2d 286, 292 (Wyo. 1976). In McCown v. Gottlieb, 465 So.2d 1120 (Ala. 1985), six lots were sold within a short period of time with uniform restrictive covenants, without a reservation of power to alter or amend the restrictive covenants, and with a declaration in the deed that the restrictive covenants shall run with the land and shall bind said land as well as the present and future owners thereof. The covenants to the lots prohibited subdivision.