*1 failing to follow Rule 12 observed WILLOWBROOK, L.L.C.; EXCEL an intentional abandon-
typically is “not Ltd.; Wayside, Southside/3500, ORTB suppression,” but ment of the Partners, Ltd.; Ltd.; FL legal had “its usual waiver nevertheless MR/VM Ltd.; Wilchrest, Westheimer LSDSS Id. at 130. As consequences.” Realty Group, L.L.C.; Excel Little issue, rejected we the idea that second Ltd.; Sage, Ltd., York, Plain made the ineffective assistance of counsel tiffs-Appellees Fourth Amendment claim re- defendant’s to file a viewable. Id. at 134. “Failure v. per not constitute suppression motion does BANK, JP MORGAN CHASE counsel,” se ineffective assistance ASSOCIATION., NATIONAL why more information about absent Defendant-Appellant, motion, attorney not file the we could did not review the claim. Id. Deposit Corporation, Federal Insurance in Andre’s brief that nothing
There is Washington Mutual as Receiver for alters the rule articulated Chavez-Va- Bank, Intervenor-Appellant. inapplicable makes it here. lenda or Partners, Ltd., filed a letter with the district
While Andre MR/VM Plaintiff-Appellee stating lawyer court that he had asked his suppress, to file a motion to he sent that v. court on December letter to the district Bank, N.A., JPMorgan Chase jury weeks after the had al- 2011—two Defendant-Appellant, Thus, ready guilty returned a verdict. opportunity did not have the district court Deposit Corporation, Federal Insurance suppression during issue consider Washington as Receiver for Mutual the course of the trial. As in Chavez- Bank, Intervenor-Appellant. Valencia, we also decline to review An- dre’s claim that he received ineffective as- Ltd., Southside/3500, Plaintiff-Appellee Though sistance of counsel. he com- plained performance of his counsel’s in his v. during
letters to the district court and his Bank, JPMorgan N.A., sentencing hearing, the record is insuffi- Defendant-Appellant, ciently re- developed permit accurate claim. view this Corporation, Deposit Federal Insurance Washington Receiver Mutual Bank, Intervenor-Appellant.
IV. CONCLUSION reasons, foregoing For AFFIRM we Wayside, Ltd., Plaintiff-Appellee ORTB the district court. v. Bank, N.A.,
JPMorgan Chase Defendant-Appellant, Corporation, Deposit Federal Insurance Washington Mutual as Receiver for Bank, Intervenor-Appellant. *2 Ltd., York, Excel Little
Plaintiff-Appellee
v. N.A.,
JPMorgan Bank, Chase
Defendant-Appellant, Corporation, Deposit Insurance
Federal Washington for Mutual
as Receiver
Bank, Intervenor-Appellant. Sage, Ltd., Plaintiff-Appellee
v. N.A.,
JPMorgan Bank, Chase
Defendant-Appellant, Deposit Corporation,
Federal Insurance Washington Mutual
as Receiver
Bank, Intervenor-Appellant. Wilchrest, Ltd.;
FL Westheimer Realty L.L.C., Group,
LSDSS
Plaintiffs-Appellees
v. N.A.,
JPMorgan Bank,
Defendant-Appellant, Deposit Corporation,
Federal Insurance Washington Receiver for Mutual
Bank, Intervenor-Appellant. Partnership, Farm Limited
Weichsel
Plaintiff-Appellee
v. N.A., Morgan Bank,
JP Succes Washington
sor-in-Interest Mu Bank, Defendant-Appellant,
tual Deposit Corporation,
Federal Insurance Washington Mutual
as Receiver for
Bank, Intervenor-Appellant. 12-20367, 12-20376, 12-20375,
Nos. 12-20381,
12-20377, 12-20378,
12-20382, 12-10784. Appeals, States Court of
United
Fifth Circuit.
Jan. *3 Chase, JPMorgan including
bilities to cer- long-term tain real-estate At issue leases. in this case is whether the owners of the can leased tracts enforce the leases conveyance. virtue of the FDIC’s summary judg- district court awarded ment to the landlords. affirm. We I.
Roy Kemp Kasling, Kasling, Hemphill, The facts of this straightfor- case are L.L.P., *4 Dolezal & Atwell, James Bruce undisputed. ward In early and Bennett, Cardwell, Bennett, Hart & (“WaMu”) Washington Mutual Bank en- L.L.P., Austin, TX, Plaintiffs-Appel- for (“the Leases”) into agreements tered lease lees. (“the Landlords”) with several landlords land, undeveloped for certain tracts of Lewis & Ho, Allyson Morgan, Newton planned which WaMu to use for future Boekius, L.L.P., Dallas, TX, Ira Claborn However, branch offices. failed on WaMu Morgan, Lewis & Boekius, L.L.P., Rogers, 25, 2008, September before it could com- Houston, TX, Defendant-Appellant. for plete any banking facilities on the tracts. Brooks, Joseph Deposit Federal Insur- authority Pursuant to its under the Finan- Corporation, Appellate Litigation ance Reform, Recovery, Institutions and cial Division, VA, Unit-Legal Arlington, Kell (“FIRREA”), Act of Enforcement Mercer, Attorney, Corrigan Husch Black- stepped FDIC into WaMu’s shoes and as- L.L.P., TX, well, Austin, Rog- Ira Claborn liabilities, all in- sumed of its assets and Morgan, Lewis ers, Boekius, L.L.P., cluding the The then Leases. solic- Houston, TX, Intervenor-Appellant. for private ited bids from financial institutions assumption for the of those purchase and Seckel, McGuire, Jeffrey Esq., Robert liabilities, ultimately accepting a assets and P.C., Dallas, TX, Strother, Craddock & Bank, by Morgan billion bid JP Chase (Weichsel $1.8 Plaintiff-Appellee Farm Limited (“Chase”). N.A. Partnership). bid, accepting
After Chase’s the FDIC and and Chase executed the Purchase As- (the “P & A sumption Agreement Agree- here, “Agreement”). ment” As relevant or Agreement split WaMu’s real-estate assets into “Bank Premises” and “Other HIGGINBOTHAM, CLEMENT, Before Estate,” giving 90-day op- Real PRADO, Judges. Circuit reject that accept tion to either or assets qualified assigning as Bank Premises but HIGGINBOTHAM, PATRICK E. outright. all Other Real Estate to Chase Judge: Circuit Agreement The defined Bank Premises to banking include all facilities WaMu Washington Mutual Bank failed actually occupied as receiver, owned or leased and Acting conveyed as the FDIC 25, 2008, the date on which substantially September all of assets and lia- of WaMu’s of the cases were either Agreement The Leases. Seven its doors.1 WaMu closed in or removed to the Southern Dis- to include “all filed Real Estate defined Other Texas, eventually they trict of where were quali- did not in real estate” that interests Premises, eighth all The case was filed including consolidated. fy Banking as The District of Texas. undisputed It the Northern rights.”2 “leasehold on in all FDIC intervened behalf Chase yet completed occupied had not WaMu summary judg- cases and moved for eight of the tracts sub- banking facilities on It the Landlords ment. contended ject September as of to the Leases “standing” interpret or enforce Hence, language of lacked plain under the they nei- Agreement, P & A as were qualified the Leases Agreement, beneficiaries to outright to ther nor intended assigned Real Other Estate Hence, the FDIC rea- only accepted Agreement. Notably, Chase. soned, they legal lacked a basis assert “expressly assume[d]” the Leases but discharge” the Leases Chase. “agree[d] pay, perform that in- all of liabilities—liabilities WaMu’s Landlords cross-moved for sum- obligations under cluded WaMu’s mary judgment, rejoining were Leases. quintessential creditor beneficiaries ap- Agreement thus P & A and thus had contrac- though Even reject promise tual to enforce Chase’s peared give Chase no *5 obligations obligations or thereun- assume WaMu’s under the Leases WaMu’s alternative, der, all In the the Landlords the FDIC has maintained at times Leases. Agreement unambig- ... that the P & A urged that “both the FDIC and Chase under- Chase, uously assigned are Bank the Leases to stood that all of the Leases Agreement brought thus Chase into Premises leases and that Chase therefore Landlords, with the and 90-day option accept assignment “privity had a estate” elementary principles “un- that under of Texas of each Lease.” Consistent with this law, rejected the Landlords there- derstanding,” Chase the Leases landlord-tenant days. accepted right The fore had a to hold Chase liable for within 90 FDIC option exercise of its breach of the Leases even the Landlords purported Chase’s authority therefore continued to retain the lacked contractual and enforce in P A capacity Agreement. Leases its as WaMu’s receiver. Thereafter, the FDIC determined granted partial The district courts sum- would be bur- compliance with Leases mary judgment to the Landlords in all and, receivership densome to the WaMu cases, eight reserving only question statutory
pursuant authority to its under damages. stipulated The then FIRREA, repudiate elected to the Leases. damages, and the district courts entered brought eight separate judgments. Although final the Southern
The Landlords Chase, agreed breach of the District with the FDIC that alleging cases Agreement Agreement defined Other Real Estate as 1. The defined Bank Premises as The houses, (other banking banking “the drive-in facili- "all interests in real estate than Bank ties, (staffed automated) Fixtures), and teller facilities or including but not lim- Premises together appurtenant parking, storage with rights, rights, leasehold condo- ited to mineral and structures connect- and service facilities interests, rights cooperative air minium and houses, ing banking facilities to remote rights development that are owned located, foregoing land on which the are [WaMu].” and that are [WaMu] are owned or leased Closing.” occupied by Bank [WaMu] as of not third-party Landlords were beneficia- sister circuits reasoned that there is a P A Agreement, ries the & both district presumption against third-party beneficia- courts concluded that the un- ry government status under contracts —a ambiguously assigned the that, Leases to Chase presumption while it require does not giving without repudi- party seeking enforcement “spe- to be ate, thereby bringing Chase into cifically individually identified in the estate with the Landlords and giving the overcome, contract” to be require does Landlords a to hold Chase liable for proof that it within a clearly “fall[s] class breach of the Leases. The appeals FDIC intended to benefit” from assignment.4 capacity on behalf of Chase in its as inter- assignment As the FDIC’s in- eight venor. All cases are consolidated on clause, cluded a no-beneficiaries the courts appeal. reasoned, the landlords could not possibly overcome presumption.5 this We are not
II. so sure. The appeal threshold issue on is whether qualify
the Landlords
as intended benefi-
interpretation
and effect of
Agreement,
ciaries to the P & A
in which the P & A Agreement is governed by the
case
have a contractual right to en-
contracts,6
federal common law of
which
force
promise
Chase’s
to assume WaMu’s draws on the “the
principles
core
obligations under
the Leases. As the
common law of contracts that
are
force
observes,
the Eleventh
Circuit and
most states.”7 One of
principles
those
recently
the Ninth Circuit have both
promisor
ad-
is that a
agrees
who
to satisfy an
question,
dressed this
declining
obligation
to afford
promisee
owes to a
similarly
third-party
situated landlords
party thereby
third
confers enforcement
beneficiary
rights
status under the same P & A
party,
to the third
qualifies
who
as a
Agreement at issue in this case.3 Our
creditor beneficiary to the contract.8 In
*6
Kanner,
1146,
(7th
3. See
JPMorgan
Corp.,
LLC v.
Steel
75 F.3d
1150
Cir.
Interface
Bank,
(11th Cir.2013);
Chase
1996)).
the landlord —tenant obligations, that a landlord is credi- under charge” established all of WaMu’s well assignment of a lease beneficiary otherwise, to an tor tan- arguably Leases and is subsequent tenant to original designating the “specifically” tamount subsequent tenant-at least if Landlords creditor beneficiaries. perform expressly agrees urge the FDIC now Though Chase and the lease.9 under obligations tenant’s Agree- they always understood Here, only accepted the FDIC’s Chase not reject give ment to in the assignment of WaMu’s interest Leases, to re- they have made no effort and “expressly assume[d]” Leases but to reflect their late- Agreement form the discharge” and pay, perform, “agree[d] “understanding.” arriving and atextual in- all of liabilities—liabilities WaMu’s concern expressed The Ninth Circuit under the Leas- obligations clude WaMu’s third-party the landlords granting Hence, appear to be es. the Landlords enforce the P & A beneficiary status to creditor beneficiaries quintessential “open[ the door to suits Agreement ] would P Agreement. & A of third who from number True, P A contains a the & Agree- might claim a benefit from the disclaiming any intention to create clause exagger- But fear is ment’s terms.” this However, as the third-party beneficiaries. ated. The FDIC made an affirmative de- observe, the no-beneficiaries assign cision to the Leases to Chase. modifying phrase qualified clause is only accepted assignment provided “except specifically as otherwise expressly “pay, perform, but covenanted to Agreement.” And under settled this construction, discharge” all of WaMu’s liabilities— contract Chase’s un- rules of “expressly including obligations WaMu’s under the qualified promise assume[] obligations promise prom- perform the contractual of promisor, the is an asset of the ises to lease, isee, by beneficiary against liability promises a direct action his on the normally carry predicated promisor appropriate to out lease is then on a of con- promisor promisee, even tract in addition to its basis in the intention of estate.”); Property on Real though give the 2-17 Powell no intention is manifested to Schoshinski, (same); § 17.04 American Law beneficiary promised per- the benefit of the (1980) (same). formance.”). Landlord and Tenant 8.12 (First) 9.See, 10. See Restatement Contracts e.g., 49 Am.Jur.2d Landlord and Tenant *7 of (1932) ("Though right the of the creditor ben- (2013) ("An agreement by express § the eficiary immediately on the formation arises assignee assignor of a lease with the to as- contract, right, unlike that of a his obligations the of the lease is enforce- sume immediately beneficiary, not inde- donee by third-party a able the landlord as benefi- suit, brings .... the creditor or [U]ntil feasible ciary, regardless a of whether the landlord is materially changes position his in otherwise party assumption agreement.... How- may right promise, the he lose his reliance on ever, clearly, every reference to or men- qualified by agreement a be- or have it new agree- tion of the covenants of a lease in an promisor promisee.”); tween the and the see assignee ment between the lessor an (Second) Contracts also Restatement by assumption the covenants amounts to an of of ("in agreement an cmt. f the absence of such assignee.”); Prop- the Restatement of vary promisor promisee not to a 16.1, (1977) [between erty, rptr. Land. & Ten. n. 4 beneficiary duty without his the consent] ("The transferee of an interest in the leased parties retain control over the contractual re- property, by assignment, virtue of the incurs created”). they lation liability only to on the burdens of the lease liability privity extent such is based on of GECCMC, If, however, prom- at 1035. the transferee 671 F.3d estate.... assigned against Had the FDIC not in Leases. Chase—even of absence con- Chase, in assigned Leases to its interest privity. rejoins tractual The FDIC having Leases without expressly power Landlords’ to assert the Leases liabilities, assume WaMu’s the Landlords Chase, against any, must derive from a qualify would not as creditor beneficia- contractual right to enforce the P & A view, affording In our ries.12 the Land- Agreement, and that of estate does rights lords enforcement on the narrow independent, not furnish an non-contractu- open facts of this case would not the flood- al, holding state-law basis for Chase liable. gates, persons as the class of entitled to Because the Landlords are neither third-party beneficiary status would re- nor third-party beneficiaries to the Agree- subject main exceedingly narrow and to ment, reasons, the FDIC lack “stand- the FDIC’s control. ing” to interpret the P & A Agreement slate, and conclude that it writing accomplishes we on a blank a com- Were we plete assignment. would conclude that are The FDIC’s circular Landlords P A Agree- reasoning ignores eight creditor beneficiaries the & legal centuries of ment and therefore have a history. contractual
right promise to enforce Chase’s to assume However, sure,
the Leases. To ignore we cannot be medieval England, that two of our right sister circuits have reached landlord had no to enforce the contrary virtually conclusion on in a against identical covenants lease an assignee of facts. In maintaining original the interest of uni- tenant: courts reasoned that formity in the construction and enforce- original while the tenant remained contrac ment of federal contracts —an area where tually obligations liable for his under the uniformity reluctantly is critical—we hold rent), (e.g., lease there was no enforceable case, that on the narrow facts of this running contract between the landlord and qualify third-party do not However, assignee.13 as noted in the beneficiaries. original Property, Restatement in “the of resulting conveniences from such a rule
III. manifest,” preventing [were] both the question The next is whether the district landlord and the rely ultimate tenant from courts erred in concluding ing that the Land- on covenants lease.14 Hence, lords have a English developed enforce the Leases courts the con against by covenants,”15 virtue of their “privity cept of of “real a concept that estate” with Chase. The Landlords con- has carried over into American law and the tend that the P A Agreement accom- laws Texas. Real covenants are cove plished a complete, present conveyance of nants that “run with the land” and can be that, the Leases longstanding prin- under enforced assign landlord law, ciples real-property creates ee tenant virtue of their “privity of gives of estate with Chase and notwithstanding Land- the absence estate” — *8 legal right However, lords the to enforce the privity.16 Leases contractual the con- accompanying 12. See Property § note 9 and text. 15. 2-17 Powell on Real supra 17.04[3] (2013). 13. See 2-17 Powell Property on Real Id.; also, (2013). § 16. e.g., 17.04[2][b] see Friedman on Leases (5th 2008) ("By receiving § ed. 7:5.1[C][l][a] III, (First) assignment 14. Restatement assignee acquires the ... Property, the an Part of (1944). brings Introductory premises interest in the Note him into 980 and that outright, the ten- Real to Chase conveyance original Estate”
tent of the
in
any
tenant
criti-
the
not retain
interest
the
remains
FDIC did
subsequent
ant to
cal,
only
tenant
comes
subsequent
undisputed
the
such
It is also
as
real estate.
if
with the landlord
“privity
into
of estate”
the
unambiguously
the Leases
fall within
original
prove
landlord can
the
the
in
of Other Real Estate set forth
definition
assigned away his entire interest
in
the
the FDIC claims
Agreement. While
(as
a
the lease
to
lesser-included
opposed
Leases
that it and Chase intended for the
i.e., a
“sublease”).17
portion,
The FDIC’s
Premises,”
to
“Bank
and that
qualify as
under
the landlord lacks
position,
which
reject
had an
Chase therefore
“standing” to
the content and effect
prove
them,
this
reason to
it offers
Court no
the
conveyance
tenants be-
of the
between
rule, which
depart
parol
from the
evidence
party
conveyance,
he is not a
cause
recognition
rests on
that the
evidence
best
covenants,
real
concept
defeat the
of
would
of the
intent at
time of execu-
parties’
the
that of
returning our law to
twelfth-centu-
language
tion is
of
contract itself.
the
the
ry England.
parol
applies
rule
is
Whether the
evidence
law,
is
question
of federal common
which
the
Accepting that
“by the core
of the
principles
informed
“standing”
the
of the
prove
have
content
in
common law of contracts that are
force
Agreement,
question
P
A
the next
is
in
no
Accordingly,
most
we see
states.”18
properly
the
con
Agreement,
whether
depart
general princi-
reason
from the
strued,
“assignment”
a complete
is
suffi
ple of
law of
that a
the common
contracts
to create
of estate
Tex
privity
cient
under
may
non-party
privity
agreement
in
to an
The
question
law.
answer to this
is
assert
Because
clearly yes.
undisputed
parol
the
evidence rule.19
It
is
plain
of
of the
indi-
Agreement assigned
language
all WaMu’s “Other
interest,
be,
ary
may
privity
of estate with the owner and makes
no matter how small it
Moore,
created.”);
payment
him liable
the owner for
at
sublease is
250 S.W.2d
Vidal,
444,
(same);
rent and on
covenants that run with the
those
764
Davis v.
151
105 Tex.
I,
land.”);
290,
(1912) (same).
Twelve Oaks Tower Ltd. v. Premier
S.W.
293
Inc.,
102,
Allergy,
(Tex.App.
S.W.2d
114
938
1996, writ) ("Liability
no
[14th Dist.]
Houston
Smith,
981 assigned away possession by failing its about to it cates that the FDIC raise be- appeal, in the Leases and that low or its briefs on entire interest better them, reject view that acceptance had no to is of a bona “[t]he Chase privity assignment of es- fide privity Landlords have established creates a of estate between the lessor assignee, tate with Chase.20 and the and it is not material that acceptance be fol- Admittedly, some non-Texas cases by assignee entering lowed into pos- come suggest privity of estate cannot premises.”23 session of the And while assignee into existence unless the tenant privity of upon expira- estate terminates actually possession underlying takes of the tion reassignment of the lease term or property, privity and that terminates another,24 assignee tenant the Leas- assignee gives up poss soon as the es in expire many this case do not Here, it is not clear from the ession.21 years and there no is evidence posses record whether Chase ever took assigned has them any parties. third However, properties.22 sion of the leased (or However, from the fact aside the Landlords are not Chase) rather, any argument necessarily has forfeited entitled to enforce all of the See, inapplicable e.g., Gateway Group, where one of the I situations Inc. v. Park Ave. (em- litigants stranger agreement.” PC, 141, 148, is a Physicians, 62 A.D.3d 877 added) (internal phasis quotation omit- marks (2009); Mars, N.Y.S.2d 95 FDIC v. 821 P.2d ted) (citations omitted)). Because Texas law 826, (Colo.Ct.App.1991). 829 law, parallels the common we federal believe ap- court made in whatever error the district suggests possession 22. The brief FDIC’s plying Texas law is harmless. FDIC, initially remained with the and that leases, repudiated posses- after the FDIC precise, 20. To be more the Landlords have i.e., privity,” privity established "vertical be sion returned the Landlords. (the tenant) assignor tween WaMu/FDIC tenant). (the assignee Traditionally, § 23. 49 Am.Iur.2d Landlord and Tenant 968 required privity” courts also "horizontal cases); also, (collecting e.g., see Friedman on order enforce real covenants a succes 2008) ("Ac- § Leases ed. 7:5.1[C][l][a] sor in interest. Horizontal refers to ceptance assignment creates relationship original between the cove liability.... consequent of estate and its It is (here, nanting parties the Landlords and necessary assignee posses- for the to take WaMu), requires the covenant to be cre right sion. It is sufficient that he have the conjunction conveyance ated in with of possession.... assignee may An relieve him- leasehold). (e.g., estate in land Horizontal liability any self of this at time in turn case, privity clearly exists in this as the cove assigning assign- to another.... But an actual that the seek are nants to enforce apparently necessary, ment rather than original included in the leases between the alone.”); abandonment Restatement privity only Landlords and WaMu. Horizontal 16.1, Property, rtpr. Land. & Ten. n. 6 of problem becomes a when the cove (1977) (same); Deposit Williams v. Safe nanting parties agreement reach their inde 331, Co., Trust 167 Md. 175 A. pendent conveyance (e.g., land two (1934) ("Neither liability does the of the as- neighbors respective covenant to drain their signee depend, according on the covenant creating nesting tracts to avoid areas for mos weight authority, upon entry his actual quitoes). Although appears Texas to retain taking possession. privity requirement, It is sufficient if the the horizontal see Clear Co., exist.”). Apts., possession Lake Inc. v. Clear Lake Utilities (Tex.Civ.App.-Houston [14th S.W.2d granted), writ Dist.] commentators Property Real 17.04[2][b] 2-17 Powell on abolished, agree that it should be and modern (2013). rarely courts mention it. 2-17 Powell on Real (2013). Property § 17.04[3][c][iii] *10 982 in commercial leases merely are standard which Leases
terms of the
therefore,
with the land.”28
“run
of
privity
have established
because
Moreover,
have entered
the district courts
rather,
only gives
estate;
privity
such
stipula-
parties’
on the
judgments based
“covenants that
to enforce
them the
facts,
agreed
parties
in which the
tions of
land,” i.e., “real covenants.”25
run with
damages
of
aris-
proper
to the
measure
as
land” if it
“runs with the
A covenant
Ac-
out of the breach of the leases.
ing
While
the land.26
“touches and concerns”
cordingly,
judgments
affirm the
we
and concerns”
the “touches
scope
of
courts.
district
elusive,
always
has
been somewhat
test
agree
appropri-
generally
courts
aware of the Eleventh Cir-
We are well
of a
Kanner,
the covenant is
inquiry
ate
is whether
in
cuit’s recent decision
Interface
original parties
type personal to
which
JPMorgan
v.
Chase Bank,29
LLC
is a skilled
“standing”
lacked
to
(e.g.,
lease
held that a landlord
theory
to build a custom
of
promises
privity-of-estate-based
who
assert a
carpenter
shed),
liability
virtually
and land-
on facts
identical to
type
a
that tenants
lease
or of
uniformity,
in
all
case.30 But our interest
apply
to
to
this
typically expect
would
lords
rent).27 Here,
powerful,
require
does not
us
though
(e.g.,
in interest
successors
legal conclusions we believe to be
damages
adopt
landlords
seek to recover
the vast
The Kanner court devoted
of
breach of the
error.
arising only out
Chase’s
taxes,
opinion
explaining why
majority
of
of its
rent and
both
pay
covenants
(Second)
17.04[3];
promisor
personal to the
§
enant
to be
at
Restatement
25.
Id.
of
also,
(1977);
§
was in-
Property,
promisee,
see
or whether the covenant
Land. & Ten. 16.1
Oaks,
regulate
at 114.
e.g., Twelve
938 S.W.2d
intended to
the relations of
stead
might
acting
be
as landlord and
who
Property § 17.04[3]
Real
26. 2-12 Powell on
Except
premises.
when
tenant of the affected
(Second)
(2013);
Property,
Restatement
personal
a
of
the covenant
is found to have
also,
(1977);
e.g.,
§ 16.1
see
Land. & Ten.
character,
benefit and burden will run to
both
Ass'n,
Property
Inc.
Baywood Estates
Owners
original landlord and
the successors of the
Caolo,
(Tex.App.-Tyler
v.
392 S.W.3d
tenant.”).
pet.). While Texas cases have held
no
party
must also have
that the
to be burdened
See,
Property
e.g., 2-17 Powell on Real
notice of the covenant
actual or constructive
(2013) ("Courts
§
have held that
17.04[3][b]
land,”
Baywood
with the
see
for it to "run
assignees
runs to
of
the burden of covenants
Estates,
con-
S.W.3d at
these cases
tenant where the covenants address
equitable servitudes.
real covenants with
fuse
payment
payment
of assess-
[and]
of rent
require privity
covenants
of estate
Real
taxes.”);
ments or
Restatement
of
regardless
2-12
with the land
notice.
run
16.1, rptr.
Property,
& Ten.
n. 3
Land.
(2013).
Property
60.04[4]
Powell on Real
(“Promises
(1977)
involving
a lease
against a
Equitable servitudes run
successor
money
subject to
promise
pay
are also
there is no
in interest even where
requirement
meeting
and concern’
the 'touch
estate,
construc-
the successor has actual or
courts____ Liability
applied by
essence, then,
Id. In
"the
tive notice.
pay
promise
rent and taxes
transferee on
replaced by
requirement
real covenants is
for
promises
In the area of
is well settled....
equitable
requirement
restric-
the notice
for
insurance,
authority
pay
little
exists
what
tions." Id.
promise to insure holds
as to a "bare”
promise
personal and does not run
such
Property § 17.04[3]
Real
27. 2-12 Powell on
land.”).
with the
(2013) ("[T]he
cove-
[is]
basic idea
lease
of the tenant
nants will not run to successors
Cir.2013).
29.
away her entire interest
the lease.
Judge, concurring
judgment.
to hold
lacks
we were
that a landlord
initio,
“standing,” ab
content
prove
has
This result
more to do with the
of an
ten-
assignment
and effect
between
arguments that
the FDIC did not raise
ants, we would make
of real
enforcement
than the innate correctness of the Land-
impracticable.
position.
covenants
lords’
damages
unpaid
31.
id. at 931-33.
ac-
See
landlord’s
rent that
repudiation.
crues
id.
before
See
1821(e)(4)(B).
id. at
32. See
933.
acknowledged
pri-
36.Notably,
the FDIC
in a
Id.
or case
this Court that it
before
has since
Agreements
clarify
& A
revised
P
its
GECCMC,
1035-36;
34. See
671 F.3d at
cf.
acquiring
reject
bank’s
real estate
Kanner,
were outright and the covenant pay rent runs substantiating contracting par- dence appeal, only with land. On real intent, likely had ties’ the FDIC error successfully high- *13 (and arguments supporting evi- colorable lights is the district courts’ choice to apply dence) interpretation regarding proper interpret Texas law to the Purchase and Assumption Agree- of the Purchase and Agreement. Assumption Though Texas they thought Even if those ment. provides state law the Landlords’ cause of arguments hopeless given plain were action, federal common law should have contract, text of the Chase and the FDIC interpret been used to the Purchase and reformation, pursued have a contract could However, Assumption Agreement.3 see, e.g., Restatement Con- point any FDIC does not out consequence (1981), simply § 155 tracts amended the error, from the district courts’ and con- Assumption Agreement. Purchase and likely cedes “the outcome is the same” All strategies of those would have been body light under either of law. In preferable attacking ability courts’ concessions the plain FDIC’s and text of cases brought hear landlords Assumption Agreement, the Purchase and assignees question on which —a harmless, it appears error was (1) wrong is on the side of hundreds of judgments the district courts’ (2) years legal history, previous legal should be affirmed. positions adopted by govern- the federal see, landlord, e.g., ment when it itself is a Statebank,
Alaska 111 IBLA 308-09
(IBLA (3)' 1989), circuit precedent re-
jecting attempts by contracting parties to interpreted “according
have contracts wishes ... rather than mean-
the[ir] [the
ing] attributable to it law” when the
parties neither claim mistake nor omission contract, drafting nor reforma- seek Co.,
tion. Great Am. Ins.