Covenants & Servitudes — NextGen Bar practice question

Two adjoining landowners meet over coffee and orally agree that neither will build a fence taller than four feet along their shared boundary, so each keeps an open view. They shake hands but write nothing down. A year later one of them — the very person who made the promise — begins erecting a six-foot privacy fence. The other sues to enforce their agreement against him directly. No successor owners are involved; these are the two original promisors.

What is the promisor's strongest defense to enforcement?

Option A. Correct answer. The promise is unenforceable because it was never put in a signed writing.Correct
Option B. Incorrect answer. The promise fails because the two neighbors lacked horizontal privity.
Option C. Incorrect answer. The promise cannot bind because a fence height does not touch and concern land.
Option D. Incorrect answer. The promise is void because a four-foot limit is an unreasonable restraint.

Why

Between the two people who made a promise about land, it is simply a contract — and the one real hurdle is the Statute of Frauds, which requires a signed writing for an interest in or restriction on land. Their oral, unwritten fence agreement flunks that requirement, so A is the strongest defense. B misfires because horizontal privity matters only when the burden must run to a successor; here the original promisor is the defendant, so privity between the makers is not the issue. C is wrong on the merits — a fence-height limit affects the light, view, and value of the parcels, so it does touch and concern; and in any event that element governs running, not enforcement between the makers. D invents an unreasonable-restraint problem; a modest view-preserving height cap is a routine, valid restriction. Original parties, unwritten promise: the Statute of Frauds decides it.

Why