dissenting.
I dissent from the majority’s decision in this ease. I would reverse the district court’s decision and remand the case because I am of the opinion that a party who is simply an equitable owner of real property cannot impose effective restrictive covenants against the property and that the covenants should not be enforced as being equitable servitudes.
The majority glosses over the primary legal question which must be answered in order to decide this case: Who can impose valid restrictions on the use of real property? The majority fails to take into account the difference between the rights of a party who holds legal title to the property and the rights of a party who owns only equitable title to the property. See Cliff & Co., Ltd. v. Anderson, 777 P.2d 595, 601 (Wyo.1989); McKone v. Guertzgen, 811 P.2d 728, 730 (Wyo.1991).
I agree with the majority’s conclusion that J M Land could not impose valid restrictive covenants that run with the land. In order for restrictive covenants to run with the land, privity of estate must exist between the original parties to the covenants. See Hein v. Lee, 549 P.2d 286, 292 (Wyo.1976); Lingle Water Users’ Ass’n v. Occidental Building & Loan Ass’n, 43 Wyo. 41, 297 P. 385, 391-92 (1931). “It is ... a general principle that covenants run only with the legal title to lands and tenements, as distinguished from the equitable title.” 20 Am.JuR.2d Covenants, Conditions, and Restrictions § 33, at 604 (1965). Since J M Land was the only party who signed the restrictive covenants and it did not have legal title to the property, the covenants were not effective.
The majority holds that, even though the restrictive covenants recorded by J M Land were not valid covenants that run with the land, the covenants were enforceable as being equitable servitudes pursuant to a contract theory. The majority indicates that a valid agreement imposed restrictions upon the property and that the agreement was binding against Streets because she took the property with notice of the restrictions.1 That analysis presupposes that J M Land created a valid contractual obligation. In order to have an enforceable equitable servitude, a covenant must exist which, “under the rules of contract interpretation, is binding between covenantor and covenantee.” RogeR A. Cunningham et al„ The Law of PROPERTY § 8.23 at 488 (1984).
An essential element of an equitable servitude is a written instrument between the grantor and the grantee showing their joint intent that the grantee’s title is conveyed subject to the common plan of re*382strictions. The grantor’s intent, although readily ascertainable from the common plan of restrictions, is insufficient.
Scaringe v. J.C.C. Enterprises, Inc., 205 Cal.App.3d 1536, 253 Cal.Rptr. 344, 349 (1988) (citation omitted). The majority does not explore how this supposed “contract” came into existence.
J M Land did not have legal title to the property when it recorded the restrictive covenants. Ruby Ranch apparently supplied deeds to the individual purchasers as J M Land sold the tracts in the subdivision. J M Land, therefore, does not appear in the chain of title to many of the tracts, and, for many of the transactions, the record does not demonstrate that J M Land was actually involved. The evidence simply does not reflect that J M Land and all the individual tract owners had a joint intent to restrict the use of the property. A legal basis does not exist for enforcing the covenants as being equitable servitudes.
It is a change in Wyoming law for us to enforce restrictions on the use of real property simply because a party takes the property with notice of the restriction, without requiring that the other requirements for binding restrictions be met. See, e.g., Hein, 549 P.2d 286; Remilong v. Crolla, 576 P.2d 461 (Wyo.1978). Therefore, at the very least, this ruling should apply prospectively only so that landowners will have the opportunity to address this issue when they enter into land sale contracts.
. JM Land does not argue cogently that it should have been able to enforce the restrictions against Streets under the equitable servitude theory. Instead, J M Land argues that it could impose valid restrictive covenants against the property because, under the doctrine of equitable conversion, its interest in the property should be considered as being an interest in real property.