Thursday, July 12, 2012

Boston Archdiocese's Use of Restrictive Covenants

Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:

One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials.  One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography.  A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

[...] There are a ton of interesting things to talk about here.  I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion.  Couple of things to think about here.  The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement.  Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.

Steve Clowney

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