## Facts

- Lewis, George, and J. Donald Yager owned land in Grand County, Colorado known as Devil’s Thumb Ranch.
- In 1973, the Yagers contracted with B.J.R. Associates (BJR) to take possession, survey the ranch, subdivide it into 26 parcels, and sell parcels as a ranch subdivision.
- In November 1974, BJR sold five lots to five buyers, including Jack Bennett (later predecessor in title to Mackintosh and Sylvia Brown) and Mountain Valley Investment Corporation.
- The purchase contracts for those initial sales included a covenant document describing restrictive covenants and certain easements intended to benefit lot owners, including access and utility easements.
- The covenant document stated that the covenants would “run with the land,” but it also contained an express termination provision allowing termination (including of easements and related agreements described in the document) at the start of the year 2000, or earlier if owners of 66% of the lots consented and recorded an appropriate termination instrument.
- In 1976, Mackintosh and Sylvia Brown acquired Bennett’s lot.
- The Browns requested an easement pursuant to the covenant document; BJR and the Yagers denied the request.
- The Browns sued BJR and the Yagers seeking to enforce the covenant document, including easement rights and related obligations connected to the subdivision plan.
- After the suit was filed, Don McDavid bought the remaining lots and became the owner of 21 of the 26 lots.
- In 1977, McDavid recorded a document terminating the covenant document, relying on the termination mechanism stated in the covenants; McDavid was then added as a party.
- After a bench trial, the trial court concluded the covenants, easements, and undertakings were perpetual, ran with the land, and were not terminable, and it entered relief consistent with that view.
- McDavid appealed, arguing the recorded covenants were terminable by their own terms and that the trial court erred in treating them as perpetual.

## Issues

1. Whether covenants and easements described as “running with the land” were nonetheless subject to an express termination clause contained in the recorded covenant document.
2. Whether the termination clause allowing termination by recorded instrument with consent of owners of 66% of the lots could be enforced as written.
3. Whether claimed need for access or other easements could prevent termination authorized by the covenant document.

## Decision

- The Colorado Court of Appeals reversed the trial court’s judgment and remanded with directions.
- The court held the covenant document, read as a whole, was not materially ambiguous and showed an intent that the covenants, easements, and related agreements would terminate at the stated time or earlier by the stated percentage-consent procedure.
- The court concluded that “run with the land” language described who was bound during the covenants’ term; it did not make the covenants perpetual or immune from termination provisions contained in the same instrument.
- The court recognized the general rule that subdivision covenants may be modified or terminated when the covenants themselves permit termination upon consent of a specified percentage of owners, and it applied that rule to enforce the recorded termination mechanism.
- The court rejected the argument that the practical need for easements could defeat the exercise of an express termination right written into the covenant document.

## Legal Principles

- A recorded covenant instrument is interpreted as a whole, giving effect to all provisions where reasonably possible, including duration and termination terms.
- Language stating covenants “run with the land” generally means the covenants bind successors and assigns during their stated term; it does not, by itself, eliminate an express termination clause.
- When subdivision covenants provide a specific method for termination (such as consent by a stated percentage of lot owners and recordation of a termination document), courts will enforce that method according to the instrument’s terms.
- Courts generally will not rewrite a bargained-for covenant scheme to remove a termination contingency that the parties included in the recorded document.
- The claimed necessity or desirability of easements does not, standing alone, prevent termination when the instrument authorizes termination.
- When a trial court’s ruling rests on interpretation of a written instrument, an appellate court may review that interpretation without deference and correct legal error in construction of the document.

## Conclusion

In *Brown v. McDavid*, the Colorado Court of Appeals held that subdivision covenants and easements that “run with the land” may still end under an express termination clause in the recorded covenant document; because the document provided for termination at a set time or earlier by recorded agreement of owners of 66% of the lots, the trial court erred in treating the covenants and easements as perpetual, and the case was reversed and remanded for application of the termination provision as written.


Brown v. McDavid, 676 P.2d 714 (1983)