13. Restrictive Covenants

Question 1

What is a covenant?

Answer 1

Written promise to;

• Do something (affirmative)
• NOT do something (restrictive)

Question 2

For covenants, what is required for burden to run with land?

Answer 2

WITHVN

1) Writing
- Buyer’s actual signature
- Buyer’s acceptance + recording of deed!!!
2) Intent
3) Touch + concern
- Control of Grantee’s land use
4) Horizontal privity (original parties)
5) Vertical privity (original creator of covenant + successor covenantee)
6) Notice
- If actual notice NOT available (as Covenant) => Record notice allowed (as Equitable Servitude)!!!

*Notice only required for burdens

Question 3

For covenants, what is required for benefit to run with land?

Answer 3

WITV

Writing
Intent
Touch + concern
Vertical privity

Question 4

What is equitable servitude?

Answer 4

Covenant that promises equity will enforce vs Successors (non-possessory interest)

Question 5

What is the difference between Covenants and Equitable Servitudes?

Answer 5

Covenants

• Monetary damages
• Privity required

Equitable Servitudes

• Injunction remedy
• NO privity required

Question 6

For equitable servitudes, what is required for burden to run with land?

Answer 6

WITN

1) Writing
- UNLESS common scheme for development of residential subdivision
2) Intent
3) Touch + concern
4) Notice

Question 7

What happens if there is common scheme of development of residential subdivision?

Answer 7

Negative servitude may be implied

If common scheme arises at time of sales => ALL parcels are subject to equitable servitude
- UNLESS (1) Changed conditions => NOT suitable for equitable servitude; (2) Enforcement of equitable servitude => Inequitable

If common scheme arises after sales => ONLY parcels with express covenants are subject to equitable servitude

Question 8

What is required for common scheme of development of residential subdivision?

Answer 8

Subdivider had general scheme
Defendant Lot-Holder had notice
- Actual
- Inquiry (neighbourhood)
- Record (prior deed)

Question 9

For equitable servitudes, what is required for benefit to run with land?

Answer 9

WIT

1) Writing
2) Intent
3) Touch and Concern

Question 10

What defences may be used against equitable servitudes?

Answer 10

CLEAU

Change in circumstances
- Pervasively

Laches
- Benefitted party failed to sue violator within reasonable time

Estoppel

Acquiesced
- Landowner agreed (express/implied) to User’s violation of servitude => Abandonment

Unclean hands
- Person seeking enforcement is violating similar restriction

NOT mere pockets of limited change

Question 11

How can covenants be terminated?

Answer 11

Written release (by benefit holder)

Merger (benefitted + burdened estates)

Condemnation (of burdened estate)

Adverse possession
- Violation of covenant