Chapter 12: Servitudes: Real Covenants and Equitable Servitudes Flashcards
Implied Reciprocal Negative Easement
-Can Baker filed suit against Abel for Abel’s hanging the flag upside down, in violation of the restriction in the first ten parcel, because an implied reciprocal negative easement was created that binds Baker?
-An implied reciprocal negative easement arises when a common grantor conveys a parcel with restrictions and, by so conveying, the remaining lots retained by the common grantor are similarly and reciprocally bound.
Burden of the Covenant Running at Law
-Does the burden of the covenant run with the land at law (money damages are sought; a traditional remedy at law) to Abel?
-For the burden of the covenant to run with the land at law, the Statute of Frauds generally must be satisfied between the original parties; the original parties must have intended successors to the promisor to be bound; the promise must touch and concern the burdened land; horizontal privity must be satisfied; and vertical privity must be satisfied.
Burden of the Covenant Running at Law: Statute of Frauds
Were the original parties bound when Otto conveyed the first lot to the first purchaser (Mr. 1) with a restriction in Mr. 1’s deed but no express restriction in the lots retained by Otto?
-For the original parties (Otto and Mr. 1) to be bound, there must be compliance with the Statute of Frauds. For successors to be bound, there also must be compliance with the Statute of Frauds where applicable, and the implied reciprocal negative easement satisfied this requirement where recognized.
Burden of the Covenant Running at Law: Intent
-Assuming that the original parties were bound, did the original parties intend successors to be bound by the promise in Mr. 1’s deed and the lots remaining in Otto?
-For the parties to have intended successors to the promisor to be bound, no magic words such as “heirs and assigns” are necessary; rather, we look to the totality of the circumstances.
Burden of the Covenant Running at Law: Touch and Concern
-Did the covenant to not engage in unpatriotic acts touch and concern Abel’s land?
-A promise touches and concerns the land when it relates to the land. A promise relates to the land when it either reduces the landowner’s rights to the land or reduces the value of the land.
Burden of the Covenant Running at law: Horizontal Privity
Assuming that the covenant touched and concerned Abel’s land, does horizontal privity exist when Otto conveyed originally to Mr 1?
-Horizontal privity is either a landlord-tenant relationship; a simultaneous relationship; or a grantor-grantee relationship.
Notice: Record
-In this notice jurisdiction, is Abel bound by the covenant because he has record notice of the deed with the express restriction to Mr. 1, which was delivered from a common grantor, Otto?
-In a notice statute, the subsequent purchaser takes without being burdened by the restriction if he does not have notice. Notice can be actual or constructive: record or inquiry. Record notice is a type of constructive notice and is the notice obtained from the public records. In some jurisdictions, a deed out from a common grantor imparts notice.
Notice: Inquiry
-Did Abel have inquiry notice of the restriction when no one else in the subdivision engaged in anti-patriotic conduct?
-Inquiry notice arises when one is apprised of facts that would lead a reasonable person to investigate further; the investigation can include an interrogation of those in possession of the property.
Violation of Public Policy
-Is the covenant that prohibits unpatriotic acts unenforceable because it is in violation of public policy or a fundamental right?
-Restrictions in a subdivision are valid unless unreasonable. Restrictions are unreasonable when they are arbitrary, violate public policy, or impose a burden on the land that outweighs any benefits.
Burden of the Covenant Running at Law
-Does the burden of the promise by Ted to pay $100 per month health club fee run with the land to TJ, who took over Ted’s lease?
-For the burden of the covenant to run with the land at law, the Statute of Frauds generally must be satisfied between the original parties; the original parties must have intended successors to the promisor to be bound; the promise must touch and concern the land; horizontal privity must be satisfied; and vertical privity must be satisfied.
Burden of the Covenant Running at Law: Statute of Frauds: Signature Requirement
-Did Ted’s signing his first name only satisfy the signature requirement of the Statute of Frauds?
-For the burden of the covenant to run, the original promise must be bound, pursuant to the Statute of Frauds. The statute requires, among other matters, that the writing be signed by the party to be charged. The element in dispute is “signed.”
Burden of the Covenant Running at Law: Statute of Frauds: Part Performance
-Assuming that Ted’s signing only his first name did not comport with the signature requirements of the Statute of Frauds, could part performance be used to take the lease out of the Statute of Frauds?
-Even in the absence of compliance with the Statute of Frauds, the doctrine of part performance will satisfy the evidentiary requirements of the statute. Part performance requires possession + payment.
Burden of the Covenant Running at Law: Statute of Frauds: Applicability to Real Covenants
-Assuming there was no compliance with the statute of frauds and part performance is not available, is the statute even applicable because what is involved here is a real covenant?
-According to some authorities, the Statute of Frauds is not applicable to real covenants because a real covenant is not an interest in land.
Burden of the Covenant Running at Law: Intent
-Did Ted and Larry intend the burden to run to successors to Ted when the lease provided, “Tenant shall pay $100 per month to maintain the health club?”
-For the parties to have intended successors to the promisor to be bound, no magic words (such as “heirs and assigns”) are necessary; rather, we look to the totality of the circumstances.
Burden of the Covenant Running at Law: Touch and Concern
-Does the promise to pay a monthly fee to maintain a health club for use by tenants touch and concern the land?
-A promise touches and concerns the land when it relates to the land. A promise relates to the land when it either reduces the landowner’s rights to the land or reduces the value of the land.
