Also known as: mutually privy · privity of contract
Written by attorneys — see sources below.
A simultaneous tenurial relationship between the original parties to a covenant requiring that they hold interests in the same land at the time the covenant is created. This form of privity of estate historically served as a prerequisite for the covenant to run with the land to successors. Courts today rarely impose the requirement.
Mason McCarthy leased rooftop space to Matrix Technologies under a lease containing an express maintenance promise that touched and concerned the premises. The lease created a tenurial relationship between Mason and Matrix at the moment of execution. When Matrix later assigned the lease, the original parties' mutual privity preserved Mason's ability to enforce the promise against Matrix on contractual grounds.
Musa Mensah leased property to Monarch Pharmaceuticals with an express promise to maintain equipment. Monarch assigned the lease to Morgan Financial after expressly promising in the assignment document to perform the maintenance duties. The original landlord-tenant relationship supplied mutual privity, and the assignee's promise shifted its own later liability to a contractual basis.
Madison Meyers and Mohan Malhotra acquired adjacent parcels as tenants in common and recorded a covenant restricting industrial use. Their simultaneous ownership created mutual privity at the time the covenant was made. A later purchaser of one parcel remained bound because the original parties' tenurial relationship satisfied the historical privity requirement.
Plaintiffs acquired ownership of the real property located in San Francisco on or about July 10, 1961, from defendants Nicholas Kotoff and Nell Kotoff. Defendant George Savage, a real estate broker, represented the sellers in the transaction. The sale was memorialized in a uniform agreement of sale and deposit receipt, attached to the complaint as Exhibit 1. This document acknowledged receipt of $1,000 toward a $21,000 purchase price for the property in its present state and condition. It contained a provision stating that no representations, guaranties or warranties of any kind or character have been made by any party hereto, or their representatives which are not herein expressed. Savage was to receive a commission of $1,000 from the sellers for his services. The complaint filed on February 13, 1962, alleged that the defendants knew at the time of the sale that the building was in a state of disrepair, that the units contained therein were illegal, and that the building had been placed for condemnation by the proper officials of San Francisco. The plaintiffs did not know these facts. They did not discover them until November 1961. The defendants willfully and fraudulently failed to reveal the information. The plaintiffs purchased the property justifiably relying on the nondisclosure in the belief that the property was in legal tenantable and properly repaired condition as required by law. The complaint sought $5,000 in general damages and $10,000 in punitive damages based on the claim that the actual market value of the property was $5,000 less than it would have been in the condition as represented. Defendant Savage filed a demurrer. The demurrer asserted that the complaint failed to state facts sufficient to constitute a cause of action. It also asserted that the complaint was ambiguous, unintelligible and uncertain. The demurrer specifically attacked the legal sufficiency of the facts pleaded on the ground that the exhibit showed the plaintiffs had offered to purchase the property in its present state and condition with no unexpressed representations. The trial court sustained the demurrer without leave to amend and entered judgment in favor of Savage. Plaintiffs appealed from the judgment entered after the sustaining of the demurrer without leave to amend.
View caseMalcolm McKinley purchased a unit subject to recorded covenants limiting pet ownership. The developer and initial purchasers held simultaneous interests in the common property, establishing mutual privity. Later owners remained subject to the restriction because the original parties' tenurial relationship met the traditional requirement for the covenant to run.
Lakeside Village is a 530-unit condominium development in Culver City consisting of 12 separate three-story buildings whose residents share common lobbies, hallways, laundry, and trash facilities. In April 1978 the developer recorded a declaration of covenants, conditions, and restrictions that included the provision that no animals, defined to mean dogs and cats, livestock, reptiles, or poultry, shall be kept in any unit. Plaintiff Natore Nahrstedt purchased a unit in January 1988 and moved in with her three cats, which she kept entirely inside the unit. When the Lakeside Village Condominium Association learned of the cats it demanded their removal and levied successive monthly fines against Nahrstedt. Nahrstedt then filed suit against the Association, its officers, and two employees seeking declaratory relief that the pet restriction was unreasonable as applied to her indoor cats, invalidation of the assessments, damages for invasion of privacy and emotional distress, and injunctive relief. The complaint alleged that the cats were noiseless, created no nuisance, and had not damaged any portion of her unit or the common areas, and it incorporated by reference the grant deed, the declaration, and the condominium plan. The Association demurred to the complaint on the ground that the restriction was reasonable as a matter of law. The trial court sustained the demurrer as to every cause of action and dismissed the complaint. A divided Court of Appeal reversed the judgment of dismissal, concluding that Nahrstedt had stated a claim for declaratory relief because the reasonableness of enforcing the restriction against her particular cats presented a factual question. The dissenting justice in the Court of Appeal maintained that the recorded restriction should be treated as presumptively valid under the law of equitable servitudes. On the Association's petition the Supreme Court granted review.
View caseMing Ma bought a lot in a planned community subject to recorded building restrictions. The original subdivider and lot purchasers held concurrent interests in the development, creating mutual privity. The committee could enforce the restrictions against Ma because the initial parties' tenurial relationship satisfied the historical privity element.
In February 1964, Alpine Slopes Development Company conveyed Lot 101 of Alpine Meadows Estates Subdivision No. 3 in Placer County to Ernest H. and Jewel Riley by grant deed recorded on March 13, 1964. The deed contained no restrictions upon the use of the plaintiffs’ property nor any reference to any instrument purporting to impose restrictions upon Lot 101. At the time of the conveyance there was no document of record purporting to restrict the use of Lot 101. Nine months later, on November 25, 1964, the grantor recorded a declaration of covenants, conditions, restrictions and reservations on lots 72 through 116 of the subdivision. The declaration recited that the grantor had established a general plan for the improvement and development of the property and set forth 26 numbered paragraphs of restrictions, covenants and conditions, including paragraph 6, which required submission of plans and specifications to the Bear Creek Planning Committee and its approval before any dwelling, garage, building, fence, wall or other structure or excavation could be commenced or maintained. At a time not established by the record the Rileys constructed a snow tunnel on their lot. On January 12, 1972, the committee recorded a notice of violation of covenants, conditions and restrictions that referred specifically to Lot 101 and the declaration recorded November 25, 1964, and recited the probable violation of paragraph 6 in that a covered walkway had been constructed without prior compliance. The Rileys filed a complaint to quiet title and for damages for slander of title. The planning committee and some of its members cross-complained for declaratory relief. The trial court entered judgment quieting title in the Rileys against all claims of defendants and ruling for the Rileys on the cross-complaint. The Court of Appeal, Third Appellate District, affirmed the judgment. The California Supreme Court granted a hearing for the purpose of giving further consideration to the issues raised.
View caseMomentum Capital purchased vehicles from Henningsen v. Bloomfield Motors under a contract containing warranty terms. The buyer and seller stood in a direct contractual relationship at formation, but the transaction lacked the simultaneous land interests required for mutual privity of estate. The court therefore analyzed liability under contract rather than property covenant rules.
In May 1955, Claus H. Henningsen purchased a new 1955 Plymouth Plaza Club Sedan from Bloomfield Motors, Inc., an authorized De Soto and Plymouth dealer for Chrysler Corporation. Mr. Henningsen intended the car as a Mother's Day gift for his wife, Helen Henningsen, and communicated that intention to the dealer. He alone signed a one-page printed purchase-order form. The reverse side contained, in fine six-point script type, a warranty clause limiting the manufacturer's obligation to replacement of defective parts within ninety days or four thousand miles and disclaiming all other warranties, express or implied. The front of the form contained two even smaller paragraphs directing attention to the back-side conditions. The form was a standardized document prepared by the manufacturer and used by all its dealers. No one called the fine-print provisions to Mr. Henningsen's attention, and he did not read them. The car was delivered on May 9, 1955, after the dealer performed the items listed in Chrysler's New Car Preparation Service Guide. On May 19, 1955, while Mrs. Henningsen was driving north on Route 36 in Highlands, New Jersey, at twenty to twenty-two miles per hour on a smooth, paved highway, she heard a loud noise from the front of the car. The steering wheel spun in her hands and the vehicle veered sharply into a highway sign and brick wall. The car had been driven only 468 miles, had required no servicing, and had exhibited no unusual behavior before the accident. An insurance appraiser with eleven years of experience examined the wrecked vehicle and concluded that something in the steering mechanism from the wheel down to the front wheels had broken or dropped off. Plaintiffs also presented expert testimony that the steering failure resulted from a latent manufacturing defect that could not have been discovered by reasonable inspection. The negligence counts against both defendants were dismissed at trial. The case was submitted to the jury solely on the implied-warranty claims. The jury returned verdicts for both plaintiffs against Chrysler Corporation and Bloomfield Motors, Inc. Defendants appealed and plaintiffs cross-appealed from the dismissal of the negligence claim. The Supreme Court of New Jersey certified the matter directly before consideration by the Appellate Division.
View caseMutual privity exists when the original parties hold simultaneous interests in the same land, such as landlord and tenant or co-owners. This tenurial relationship was historically required for a covenant to run with the land.
Mutual privity is rarely required under modern law. Most jurisdictions now rely on horizontal and vertical privity instead, and the Restatement of Servitudes eliminates the privity requirement entirely.
Mutual privity concerns simultaneous land interests between original parties and historically supported running covenants. Privity of contract arises from an express promise in the lease and survives assignment even after estate privity ends.
Yes. When parties hold undivided interests in the same parcel as co-owners, they satisfy the mutual privity requirement because they possess simultaneous interests in the identical land.
…connection with the car. Then Chrysler urges that since it was not a party to the sale by the dealer to Henningsen, there is no privity of contract between it and the plaintiffs, and the absence of this privity eliminates any such implied warranty. There is no doubt that under early common-law concepts of contractual liability, only…