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Legal commentators as well as judicial decisions have applied a presumption of validity to the recorded land use restrictions of a common interest development. (Noble v. Murphy, 612 N.E.2d 266, 270; Hidden Harbour Estates v. Basso, 393 So.2d 637, 639-640; Note, Judicial Review of Condominium Rulemaking, 94 Harv.L.Rev. 647, 653.) As these authorities point out recorded CC&R's are the primary means of achieving the stability and predictability so essential to the success of a shared ownership housing development. In general, then, enforcement of a common interest development's recorded CC&R's will both encourage the development of land and ensure that promises are kept, thereby fulfilling both of the policies identified by the Restatement. (See Rest., Property, § 539, com. f, p. 3230.)
When courts accord a presumption of validity to all such recorded use restrictions and measure them against deferential standards of equitable servitude law, it discourages lawsuits by owners of individual units seeking personal exemptions from the restrictions. This also promotes stability and predictability in two ways. It provides substantial assurance to prospective condominium purchasers that they may rely with confidence on the promises embodied in the project's recorded CC&R's. And it protects all owners in ...
