Ass. 24-25: Enforcement & Running of the Covenants

Question 1

real covenant: req for BURDEN to run

Answer 1

1. og parties must intend to bind their successors
2. burden of the covenant must “touch and concern” the land
3. horizontal privity must exist
4. vertical privity must exist (strict)
5. successor must have notice of the covenant

Question 2

real covenant: req for benefit to to run

Answer 2

1. intent to bind successors
2. touch and concern
3. vertical privity (relaxed)

Question 3

Intent

Answer 3

og contracting parties intended the burden/benefit of the promise runs w the land

Question 4

touch & concern

Answer 4

covenant must relate to the direct use or enjoyment of the land
- satisfied by a covenant that has some economic impact on the parties ownership rights

Question 5

horizontal privity

Answer 5

exists btwn the promisor & promisee who have mutual, simultaneous interests in the land
- ex. LL & T, dom owner & serv owner, grantor-grantee
- concerns ONLY the original parties

Question 6

strict vertical privity

Answer 6

exists only if the successor succeeds to the ENTIRE estate in land held by the og party
- required for burden to run

Question 7

relaxed vertical privity

Answer 7

exists only if the successor succeeds to any part of the estate held by the og party
- required for benefit to run

Question 8

types of notice

Answer 8

• constructive: through recording of the og instrument
• active: is told of the covenant

Question 9

equitable servitude

Answer 9

1. benefits & burdens og parties to the promise & their successors
2. enforceable in equity, typically injunction

Question 10

equitable servitude: req for burden to run

Answer 10

1. og parties must intend to burden successors
2. promise must touch & concern land
3. successors must have notice

Question 11

equitable servitude: req for benefit to run

Answer 11

1. og parties must intend to benefit successors (established through writing)
2. promise must touch & concern land

Question 12

common plan/scheme

Answer 12

• if manifested by a developer to impose uniform restrictions on a subdivision, most courts will conclude on equitable servitude will be implied
• every lot in subdivision is burdened and benefitted
• any lot owner may enforce restriction

Question 13

evidence necessary to establish common plan

Answer 13

• % of deeds containing the restriction
• developers oral representation
• stmts in written ads, sales brochures, maps
• recorded plat maps or declarations