12 Cal.4th 345 (1995) 906 P.2d 1314 47 Cal. Rptr.2d 898

CITIZENS FOR COVENANT COMPLIANCE et al., Plaintiffs and Appellants,
v.
JARED A. ANDERSON et al., Defendants and Appellants.

Docket No. S043578.

Supreme Court of California.

December 29, 1995.

*347 COUNSEL

Wilson, Sonsini, Goodrich & Rosati and Debra Summers for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General, Jamee Jordan Patterson, Deputy Attorney General, William M. Pfeiffer, Steven A. Sokol, *348 Sonia M. Younglove, Miller, Starr & Regalia, Harry D. Miller, Rutan & Tucker and Anne Nelson Lanphar as Amici Curiae on behalf of Plaintiffs and Appellants.

Roger Bernhardt, Cooley, Godward, Castro, Huddleson & Tatum, Kenneth J. Adelson, Benjamin K. Riley and Yvonne Gonzalez Rogers for Defendants and Appellants.

Stephen Cavellini as Amicus Curiae on behalf of Defendants and Appellants.

OPINION

ARABIAN, J.

The Andersons want to plant and harvest grapes, operate a winery, and keep llamas on their property in Woodside. Some neighbors object, and claim such activities are prohibited by covenants, conditions and restrictions (CC&R's) that limit the Andersons' property, and theirs, to residential use. The Andersons counter, thus far successfully, that the CC&R's are not enforceable because they are not mentioned in any deed to their property. The dispute is now before us.

Its resolution requires us to penetrate a legal thicket entangled by the ancient doctrines of convenants that run with the land and equitable servitudes. The task is not easy. "The law of easements, real covenants, and equitable servitudes is the most complex and archaic body of American property law remaining in the twentieth century." (French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands (1982) 55 So.Cal.L.Rev. 1261.) Another commentator uses stronger language: "The law in this area is an unspeakable quagmire. The intrepid soul who ventures into this formidable wilderness never emerges unscarred. Some, the smarter ones, quickly turn back to take up something easier like the income taxation of trusts and estates. Others, having lost their way, plunge on and after weeks of effort emerge not far from where they began, clearly the worse for wear. On looking back they see the trail they thought they broke obscured with foul smelling waters and noxious weeds. Few willingly take up the challenge again." (Rabin, Fundamentals of Modern Real Property Law (1974) p. 489.)

It is, however, necessary to take up the challenge. In vino veritas. Although the relevant doctrines go back centuries, they are more vital than ever today as California becomes increasingly crowded and people live in closer proximity to one another. Planned communities have developed to regulate *349 the relationships between neighbors so all may enjoy the reasonable use of their property. Mutual restrictions on the use of property that are binding upon, and enforceable by, all units in a development are becoming ever more common and desirable. We recently confronted the question of what restrictions may reasonably be imposed in a condominium setting. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361 [33 Cal. Rptr.2d 63, 878 P.2d 1275].) This case addresses an earlier step in the process, considering how a general plan of restrictions is created in the first place.

The CC&R's of this case were recorded before any of the properties they purport to govern were sold, thus giving all buyers constructive notice of their existence. They state they are to bind and benefit each parcel of property as part of a planned community. Nevertheless, the Court of Appeal held they are not enforceable because they were not also mentioned in a deed or other document when the property was sold. (1a) We disagree, and adopt the following rule: if a declaration establishing a common plan for the ownership of property in a subdivision and containing restrictions upon the use of the property as part of the common plan is recorded before the execution of the contract of sale, describes the property it is to govern, and states that it is to bind all purchasers and their successors, subsequent purchasers who have constructive notice of the recorded declaration are deemed to intend and agree to be bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceable merely because they are not additionally cited in a deed or other document at the time of the sale.

We therefore reverse the judgment of the Court of Appeal.

I. THE FACTS

Defendants Jared A. and Anne Anderson (the Andersons) own two adjacent parcels of property in Woodside that were part of separate subdivisions developed at different times.

One parcel was part of Skywood Acres, created in the 1950's when Joseph and Claire Stadler subdivided land into some 60 residential building lots. On June 5, 1958, an instrument entitled "Declarations Imposing Covenants Restrictions and Agreements Affecting ... Skywood Acres," executed by the Stadlers, was recorded in San Mateo County. It states that the Stadlers owned the property, the map of which had previously been recorded, and expresses their "desire to establish a general plan for the improvement and *350 development of said property and to subject said property to the following conditions, restrictions, covenants and reservations upon and subject to which all of said property shall be held, improved and conveyed...." Numerous restrictions follow, the first of which is that each lot "shall be used for residential purposes only." The instrument provides that "Dogs, cats, hares, fowls and fish may be kept as household pets provided they are not kept, bred or raised for commercial purposes or in unreasonable number," and allows keeping horses on specified lots under certain conditions. It also states, "All these conditions and restrictions shall run with the land and shall be binding upon all parties and all persons claiming under them...." It further provides that, as to the Stadlers and "their grantees and successors in interest of any lot or lots" in the subdivision, the conditions are to be "covenants running with the land" enforceable by "the Subdividers, grantees or assigns, or by such owners or successors in interest."

The portion of Skywood Acres involved here was sold on October 14, 1958, and, after intermediate conveyances, was eventually acquired by the Andersons. Neither the original grant deed nor any other deed in the chain of title leading to the Andersons refers to the recorded restrictions. The Andersons' title insurance report, however, identifies the Skywood Acres CC&R's.^[1]

The second parcel was part of the Friars subdivision, comprised of four lots. On January 24, 1977, the Town of Woodside adopted a resolution approving the parcel map for the subdivision upon certain conditions, including that the developer submit to the town attorney for approval "the convenants, conditions and restrictions applicable to this land division." On May 10, 1977, a "Declaration Imposing Covenants, Restrictions, Easements and Agreements," executed by the owner, was recorded.

This declaration describes the property in the subdivision and states that the owner desired and intended "to subject [the property] to certain conditions, covenants and charges between them and all subsequent purchasers...." It declares that the property "shall be conveyed subject to the conditions, convenants and charges" set forth, including that the property is to be used solely for single family residences, and specifically "exclude[s] *351 every form of business, commercial, manufacturing, or storage enterprises or activity...." Keeping animals other than household pets and horses is prohibited. The restrictions "are declared to constitute mutual equitable convenants and servitudes for the protection and benefit of each property in the said subdivision," and "are to run with the land." Moreover, "Each grantee of a conveyance or purchaser under a Contract or Agreement of Sale by accepting a Deed or a Contract of Sale or Agreement of purchase, accepts the same subject to any of the covenants, restrictions, easements and agreements set forth in this Declaration and agrees to be bound by the same." The owner of any of the parcels may enforce the restrictions.

The portion of the Friars subdivision involved here was sold two days after the CC&R's were recorded, and eventually was acquired by the Andersons at a foreclosure sale. The original deed refers to the parcel map, but not to the CC&R's. No other deed in the Andersons' chain of title refers to them. The title insurance report for this lot, purchased by the original buyers, identifies the Friars CC&R's.

The parties agree that both subdivisions were "developed from a general plan of uniform development." Both sets of CC&R's contain provisions regarding possible modification and termination of the restrictions. The record does not indicate whether any other deed to property in either subdivision mentions the CC&R's.

After purchasing the two parcels of property, the Andersons entered into a limited partnership agreement with a company located in the Island of Guernsey in the United Kingdom to operate a winery under the name Chaine d'Or Vineyards. They have obtained permits from the Town of Woodside to grow grapes and produce wine on their property, subject to specified conditions. In addition, the Andersons have admitted to keeping seven llamas on the property as pets.

The plaintiffs, an unincorporated association named Citizens for Covenant Compliance and individual landowners representing both subdivisions (hereafter, collectively, Citizens), filed this action against the Andersons to enforce both the Skywood Acres and the Friars CC&R's, which, they claim, prohibit the wine business and the keeping of llamas. The superior court found the CC&R's unenforceable, and judgment was eventually entered for the Andersons. Citizens appealed.

The Court of Appeal affirmed. For "several reasons," it determined that the CC&R's are not covenants running with the land. It also found they are *352 not enforceable as equitable servitudes because no deed or other written instrument exchanged between a buyer and a seller refers to the CC&R's. For this reason, the court concluded, no parcel in either subdivision was "conveyed pursuant to an express, written, agreement that it was conveyed subject to a general plan of restrictions. Absent that, it is irrelevant that the Andersons may have had actual notice of the CC&R's."

We granted Citizens' petition for review.

II. DISCUSSION

A. Background

1. Covenants and Equitable Servitudes

Modern subdivisions are often built according to a general plan containing restrictions that each owner must abide by for the benefit of all. "Ordinarily, a general plan of restriction is recorded by the subdivider grantor for the purpose of insuring the uniform and orderly development and use of the entire tract by all of the original purchasers as well as their successors in interest. The restrictions are imposed upon each parcel within the tract. These subdivision restrictions are used to limit the type of buildings that can be constructed upon the property or the type of activity permitted on the property, prohibiting such things as commercial use or development within the tract, limiting the height of buildings, imposing setback restrictions, protecting views, or imposing similar restrictions." (Sain v. Silvestre (1978) 78 Cal. App.3d 461, 466 [144 Cal. Rptr. 478], and quoted in Fig Garden Park etc. Assn. v. Assemi Corp. (1991) 233 Cal. App.3d 1704, 1707-1708 [285 Cal. Rptr. 303], fns. omitted.)

The CC&R's of this case contain such restrictions. The Andersons contend, however, that they never took effect because they were not referenced in any deed to their property. Citizens contends they are enforceable as either (1) covenants that run with the land, or (2) equitable servitudes, two doctrines of distinct lineage. The dual nature of the argument has substantially complicated the question. Indeed, the differing history, uncertain mutual interplay, and varying technical requirements of these doctrines help explain why the law in the area is "an unspeakable quagmire." (Rabin, Fundamentals of Modern Real Property Law, supra, p. 489.) One author states that the distinction between the doctrines "can best be understood as *353 an archaic survivor of the former separation of the courts of law and equity. Each type of court developed its own set of requirements for covenants to run with the land.... Unfortunately, the modern union of law and equity has not yet produced a unified law of covenants." (5 Powell on Real Property (1995) Covenants as to Use, § 670[2], p. 60-12, fns. omitted.) A detailed review of the history and elements of these doctrines is unnecessary but, given modern confusion and, among legal scholars at least, interest regarding the degree to which the doctrines remain separate, a brief overview is appropriate.

The first doctrine to develop was that of real covenants or, as generally stated in California, covenants that run with the land, which dates back at least to Spencer's Case (1583 Q.B.) 77 Eng.Rep. 72. (See 5 Powell on Real Property, supra, Convenants as to Use, § 670[2], p. 60-12.) A covenant is said to run with the land if it binds not only the person who entered into it, but also later owners and assigns who did not personally enter into it. (Civ. Code, § 1460;^[2]Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal. App.3d 1536, 1543 [253 Cal. Rptr. 344].) In California, only covenants specified by statute run with the land (§ 1461), primarily those described in sections 1462 and 1468. However, prior to the amendments of section 1468 in 1968 and 1969, these sections were written and interpreted very narrowly. Under section 1462, a convenant that benefits the property may run with the land, but not one that burdens the property. Section 1468, as originally enacted in 1905, only applied to a covenant "made by the owner of land with the owner of other land," and not to a covenant between a grantor and a grantee. (Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 377-378 [101 P.2d 490]; see generally, 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, §§ 490-491, pp. 667-669.) Because the convenants in this case are between grantor and grantee and burden the property as well as benefit it, they would not qualify as covenants that run with the land under these provisions.

Beginning with the 1848 English decision of Tulk v. Moxhay (1848 Ch.) 41 Eng.Rep. 1143, courts of equity sometimes enforced covenants that, for one reason or another, did not run with the land in law, and the separate doctrine of equitable servitudes arose. (See 5 Powell on Real Property, supra, Convenants as to Use, § 670[2], pp. 60-7 to 60-9.) California adopted this doctrine, and it accumulated its own body of rules. (E.g., Werner v. Graham (1919) 181 Cal. 174 [183 P. 945].) Because of the statutory limitations on covenants running with the land, at least before section 1468 *354 was amended, California courts have "[t]raditionally" analyzed CC&R's under the doctrine of equitable servitudes. (Scaringe v. J.C.C. Enterprises, Inc., supra, 205 Cal. App.3d at p. 1544; see also Richardson v. Callahan (1931) 213 Cal. 683, 686 [3 P.2d 927].)

In 1968 and again in 1969, section 1468 was amended to make covenants that run with the land analytically closer to equitable servitudes. Today, that statute applies to covenants between a grantor and grantee as well as between separate landowners. (Scaringe v. J.C.C. Enterprises, Inc., supra, 205 Cal. App.3d at pp. 1543-1544.)^[3] Covenants governed by the amended statute might run with the land even if they formerly would not. (Id. at p. 1544.) The amendments have been held to apply only to covenants postdating their enactment. (Oceanside Community Assn. v. Oceanside Land Co. (1983) 147 Cal. App.3d 166, 174, fn. 4 [195 Cal. Rptr. 14]; Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal. App.3d 964, 972, fn. 3 [190 Cal. Rptr. 38].) Thus, they would apply to the 1977 Friars subdivision but not to the earlier Skywood Acres; no matter how the current issue is decided, the CC&R's of the latter would remain enforceable, if at all, only as equitable servitudes.

Commentators have argued that covenants that run with the land and equitable servitudes should be, or possibly have been, merged into a single doctrine. (French, Design Proposal for the New Restatement of the Law of Property — Servitudes (1988) 21 U.C. Davis L.Rev. 1213, 1223 ["The conceptual identity between real covenants and equitable servitudes, and the courts' practical fusion of the two has been recognized for at least a quarter *355 of a century."]; Reichman, Toward a Unified Concept of Servitudes (1982) 55 So.Cal.L.Rev. 1177, 1186, 1230; Newman & Losey, Covenants Running with the Land, and Equitable Servitudes; Two Concepts, or One? (1970) 21 Hastings L.J. 1319.) Whether the amendments to section 1468 have accomplished this fusion in California is beyond the scope of the narrow issue before us. (But see Soman Properties, Inc. v. Rikuo Corp. (1994) 24 Cal. App.4th 471, 484 [29 Cal. Rptr.2d 427]; Note, Covenants and Equitable Servitudes in California (1978) 29 Hastings L.J. 545, 587-588.) Neither the previous statutes nor the current statutes answer this question, which involves how a covenant is created. But we see no difference regarding this issue between convenants that run with the land and equitable servitudes; the rule we adopt applies equally to both.

2. Recording Provisions

By statute, any instrument "affecting the title to ... real property may be recorded" by the "county recorder of the county in which the real property affected thereby is situated." (Gov. Code, § 27280, subd. (a); Civ. Code § 1169.) "Recording consists of copying the instrument in the record book and indexing it under the names of the parties. (See Govt. C. 27257, 27322 et seq.)" (4 Witkin, Summary of Cal. Law, supra, Real Property, § 200, p. 406.) Civil Code section 1213 provides that every "conveyance" of real property recorded as prescribed by law provides "constructive notice" of its contents to subsequent purchasers. The term "conveyance" is broadly defined to include "every instrument in writing ... by which the title to any real property may be affected. ..." (Civ. Code, § 1215, italics added.) Constructive notice "is the equivalent of actual knowledge; i.e., knowledge of its contents is conclusively presumed." (4 Witkin, Summary of Cal. Law, supra, § 203, p. 408, italics in original.)

CC&R's, which affect title to real property, have long been recorded under these provisions. (See, e.g., Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 504, 511-512 [131 Cal. Rptr. 381, 551 P.2d 1213] (Riley); Scaringe v. J.C.C. Enterprises, Inc., supra, 205 Cal. App.3d at pp. 1540-1541, 1543-1544; and cases cited below.)

B. Analysis

Two factual circumstances, and the interplay between them, are of paramount importance. First, the CC&R's were recorded before any of the property was sold, thus giving the Andersons notice of their existence. *356 Second, no written document executed at the time of any of the conveyances of the Andersons' properties refers to the CC&R's.

Properly stated, the issue here is not whether the restrictions run with the land, and thus bind successors as well as the original grantees, but whether they ever took effect in the first place so as to bind even the original grantees. Specifically, the issue is whether a purchaser is bound by previously recorded CC&R's even though none of the written documents executed at the time of the conveyance refer to them. This involves the question whether there is sufficient expression of intent on the purchaser's part to enter into the convenants. Although notice is relevant to our resolution of the issue, it is not the issue itself.

1. California Cases

In the 1919 decision of Werner v. Graham, supra, 181 Cal. 174 (Werner), a developer subdivided a tract and recorded a map of the tract. "This map showed no building lines or anything else to indicate any purpose of restricting in any way the manner in which the different lots might be built upon or otherwise improved or the uses to which they might be put." (Id. at p. 177.) He then sold the lots. The early deeds contained "restrictive provisions, which, while differing slightly in some instances, dependent upon the location of the particular lot ... are yet so uniform and consistent in character as to indicate unmistakably that [the developer] had in mind a general and common plan which he was following." (Ibid.) The developer told the purchasers "that he was exacting the same restrictive provisions from all purchasers." (Id. at p. 179.) He later quitclaimed the property eventually purchased by the plaintiff. The deed to this property contained no restrictions. The issue was whether the restrictions placed in the deeds to the other property were also binding on the plaintiff.

The developer in Riley, supra, 17 Cal.3d 500, sold the property in dispute by a deed that contained no restrictions. "[A]t the time of the conveyance there was no document of record purporting to restrict the use of" the property. (Id. at p. 504.) Nine months after the conveyance, the developer recorded a document purporting to impose uniform restrictions on a number of lots, including the one in dispute. The issue was whether these restrictions applied to the lot sold earlier.

In both Werner, supra, 181 Cal. 174, and Riley, supra, 17 Cal.3d 500, we held the property was not bound by the restrictions. It is readily apparent that *357 both are factually distinguishable from this case. In Werner, there was no recorded document imposing uniform restrictions on the entire subdivision, only individual deeds imposing restrictions on specific parcels. In Riley, the restrictions were recorded after the conveyance at issue. Nevertheless, the Andersons cite some of the language of these decisions as aiding their position.

In Werner, supra, 181 Cal. at pages 181-182, we noted that the restrictions in the earlier deeds did not state that the land was part of a larger tract, that the restrictions were intended to benefit other land, or that the benefit was to pass to other land. "Servitudes running with the land in favor of one parcel and against another cannot be created in any such uncertain and indefinite fashion. It is true, the nature of the restrictions is such that, when considered in connection with the fact that [the developer] still retained the greater portion of the tract, it is not improbable that he exacted them for the benefit of the portion so retained. But the grantee's intent in this respect is necessary, as well as the grantor's, and the deed, which constitutes the final and exclusive memorial of their joint intent, has not a word to that effect, nor anything whatever which can be seized upon and given construction as an expression of such intent. If such was their intent, it has not been expressed." (Id. at p. 182, italics added.)

It made no difference in Werner that the developer "in all his deeds exacted similar restrictions and clearly had in mind a uniform plan of restrictions which he intended to impose, and actually did impose, upon all the lots in the tract as he sold them." (Werner, supra, 181 Cal. at p. 183.) We recognized that if the deeds contain "appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others." (Ibid.) These mutual servitudes "spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance." (Ibid.) But, we stated, the "crux of the present case" was that "here there is no language in the instruments between the parties, that is, the deeds, which refers to a common plan of restrictions or which expresses or in any way indicates any agreement between grantor and grantee that the lot conveyed is taken subject to any such plan." (Id. at p. 184.)

We went on to explain the significance of these facts. "The intent of the common grantor — the original owner — is clear enough. He had a general plan of restrictions in mind. But it is not his intent that governs. It is the joint intent of himself and his grantees, and as between him and each of his *358 grantees the instrument or instruments between them, in this case the deed, constitute the final and exclusive memorial of such intent. It is also apparent that each deed must be construed as of the time it is given.... Nor does it make any difference that ... [the developer] gave each grantee to understand, and each grantee did understand, that the restrictions were exacted as part of a general scheme. Such understanding was not incorporated in the deeds, and as we have said, the deeds in this case constitute the final and exclusive memorials of the understandings between the parties. Any understanding not incorporated in them is wholly immaterial in the absence of a reformation. [Citations.] This whole discussion may in fact be summed up in the simple statement that if the parties desire to create mutual rights in real property of the character of those claimed here they must say so, and must say it in the only place where it can be given legal effect, namely, in the written instruments exchanged between them which constitute the final expression of their understanding." (Werner, supra, 181 Cal. at pp. 184-185, italics added.)

In Riley, supra, 17 Cal.3d 500, we relied on Werner, supra, 181 Cal. 174, in finding the later recorded restrictions not enforceable. We stressed the key fact distinguishing that case from this — that the restrictions of Riley were recorded after the conveyance — and stated that "quite apart from the rule of Werner v. Graham, it is manifest that acknowledgment and recordation of a declaration of restrictions by the grantor after the conveyance to plaintiffs cannot affect property in which the grantor no longer has any interest." (Riley, supra, 17 Cal.3d at p. 507.) We rejected the claim that parol evidence may be admitted to show that the parties in fact intended the property to be subject to restrictions like those later recorded, finding that the covenants must be in writing to be effective. "Every material term of an agreement within the statute of frauds must be reduced to writing. No essential element of a writing so required can be supplied by parol evidence." (Id. at p. 509.) A contrary rule, we said, "`"would make important questions of the title to real estate largely dependent upon the uncertain recollection and testimony of interested witnesses. The rule of the Werner case is supported by every consideration of sound public policy which has led to the enactment and enforcement of statutes of frauds in every English-speaking commonwealth."'" (Id. at p. 510, quoting McBride v. Freeman (1923) 191 Cal. 152, 160 [215 P. 678].) Therefore, there "`"should be some written evidence"'" indicating what property was affected by the restrictions. (17 Cal.3d at p. 510, quoting Wing v. Forest Lawn Cemetery Assn. (1940) 15 Cal.2d 472, 480 [101 P.2d 1099, 130 A.L.R. 120], italics added in Riley.) "`"As a matter of policy, the understanding of the parties should be definite and clear, and should not be left to mere conjecture."'" (Ibid.)

We also emphasized the importance of recording the restrictions. "`[T]he recording statutes operate to protect the expectations of the grantee and *359 secure to him the full benefit of the exchange for which he bargained. [Citations.] Where, however, mutually enforceable equitable servitudes are sought to be created outside the recording statutes, the vindication of the expectations of the original grantee, and for that matter succeeding grantees, is hostage not only to the good faith of the grantor but, even assuming good faith, to the vagaries of proof by extrinsic evidence of actual notice on the part of grantees.... The uncertainty thus introduced into subdivision development would in many cases circumvent any plan for the orderly and harmonious development of such properties and result in a crazy-quilt pattern of uses frustrating the bargained-for expectations of lot owners in the tract.'" (Riley, supra, 17 Cal.3d at pp. 511-512.)

In dicta, we also stated that Murry v. Lovell (1955) 132 Cal. App.2d 30 [281 P.2d 316], "a leading authority in the Werner line, makes clear that even if the restrictions here in question had been recorded prior to the issuance of plaintiffs' deed, no equitable servitude would have been created absent the inclusion of such restrictions, by recitation or incorporation, in the deed. Compare Martin v. Holm (1925) 197 Cal. 733 [242 P. 718], wherein the deed to defendants contained no restrictions but they took with record notice of a prior deed establishing reciprocal servitudes binding upon their grantor." (Riley, supra, 17 Cal.3d at p. 507, fn. 4; see also id. at p. 512.)

In both Werner, supra, 181 Cal. 174, and Riley, supra, 17 Cal.3d 500, there was no prior recorded document providing a common plan and stating that the restrictions were to apply to every parcel. The only documents in existence from which the mutual intent and agreement of the parties could be discerned were the deeds themselves, which were silent. No decision by this court invalidating restrictions involves a written plan, like that here, that was applicable to an entire tract and was recorded before conveyancing. However, some intermediate appellate decisions have concluded that for recorded uniform restrictions to take effect, they must at least be referenced in a deed or other instrument at the time of an actual conveyance. (Stell v. Jay Hales Development Co. (1992) 11 Cal. App.4th 1214, 1229-1230 [15 Cal. Rptr.2d 220]; Scaringe v. J.C.C. Enterprises, Inc., supra, 205 Cal. App.3d at pp. 1545-1547; Trahms v. Starrett (1973) 34 Cal. App.3d 766, 770-772 [110 Cal. Rptr. 239]; Anderson v. Pacific Avenue Inv. Co. (1962) 201 Cal. App.2d 260, 262-264 [19 Cal. Rptr. 829]; Murry v. Lovell, supra, 132 Cal. App.2d 30.)

In Murry v. Lovell, supra, 132 Cal. App.2d 30, for example, prior to any sales, the owners of a parcel of land to be subdivided recorded a document purporting to impose use restrictions upon the property. One of the original *360 owners testified that when he executed the deeds to the properties at issue, he "told each of [the buyers] about the restrictions and read to them a copy of the recorded declaration." (Id. at p. 32.) However, no deed mentioned the restrictions. The court concluded that the restrictions never took effect. It found that the owners "unquestionably had in mind that they would convey the various lots subject to the proposed equitable servitudes thereby evidenced, but, having gone that far, they had not as yet created any servitudes whatever. They were still the owners of the whole property and until and unless they made conveyances, which conveyances contained the provisions for equitable servitudes either by direct expression in the deeds or by reference to the recorded declaration of restrictions or other effective means of creating by the severance, and as a part of it, the equitable servitudes counted upon herein, those equitable servitudes would not arise.... We hold that, so far as the record here shows, no equitable servitudes existed." (Murry v. Lovell, supra, 132 Cal. App.2d at pp. 35-36.)

It has not taken much to satisfy the requirement of a reference in a deed. As little as a statement that the property is "subject to" restrictions of record (Martin v. Holm (1925) 197 Cal. 733, 740, 745 [242 P. 718]; Soman Properties, Inc. v. Rikuo Corp., supra, 24 Cal. App.4th at pp. 482-483; Fig Garden Park etc. Assn. v. Assemi Corp., supra, 233 Cal. App.3d at pp. 1709-1710), or even a "reference to restrictions `of record, if any'" (Oceanside Community Assn. v. Oceanside Land Co., supra, 147 Cal. App.3d at p. 174) has been found to suffice. (But see Russell v. Palos Verdes Properties (1963) 218 Cal. App.2d 754, 767 [32 Cal. Rptr. 488