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BankruptcyFeaturesLitigationThe Bankruptcy Strategist

The Bankruptcy Code's Inherent Limitations for Struggling Golf Courses

By Daniel A. Lev

A simple Google or LoopNet search will unearth countless privately-owned golf courses that have closed, are for sale, or have sought bankruptcy protection as an avenue toward a financial restructuring or redevelopment. However, there are limitations on what the owner of a golf course can accomplish in Chapter 11 when the property is burdened with restrictive covenants limiting the use of the property.

In general, a restrictive covenant imposes a restriction on the use of land so that the value and enjoyment of adjoining land will be preserved. Typically, obligations created by a set of covenants, conditions, and restrictions affecting real property run with the land. “To run with the land, a covenant must touch and concern land, which means it must affect the parties as owners of the particular estates in land or relate to the use of land.” Anthony v. Brea Glenbrook Club, 58 Cal. App. 3d 506, 510, 130 Cal. Rptr. 32 (1976). The primary characteristic of a covenant running with the land is that both liability upon it, and enforceability of it, pass with the transfer of the estate. Id., at 510

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