covenants

Question 1

covenant rwl needs

Answer 1

promise that runs with the land
needs to be in writing
show intent to run with land
privity of estate

Question 2

horizontal privity

Answer 2

burden does not some do
benefit does not

Question 3

vertical privity

Answer 3

benefit =does not need it some do
special rules =
life tenant benefit of an affirmative covenant runs to a legal life tenant.
lesse , to repair, maintain or render services to the property runs , if doesn’t diminish value
adverse do if covenants to repair, maintain, or
render services to the property; and Covenant benefits that can be enjoyed by the person
in possession without diminishing their value and increasing burden

Burden: Some jurisdictions still require vertical privity for the burden of a covenant to
run at law.

negative servitude burden does not need vp
A lessee is bound by the burden of an affirmative covenant only if that burden may be performed more reasonably by the person in possession of the property than a holder of the reversion.
 Life Tenants:
 A life tenant is bound by the burden of an affirmative
covenant, but only to extent of the value of the life estate.
 Adverse Possessor: An adverse possessor is bound by the burden
of an affirmative covenant.

Question 4

touch and concern

Answer 4

touch and concern” refers to the requirement that the covenant must relate to the land in question and affect its use, enjoyment, value, or character

traditional both had to touch and concern
modern

The modern trend is to permit the benefit to run if it touches, even if the burden does not
touch.
 Some courts may also permit the burden to run if it touches, even if the benefit does not
touch.

3rd restatement =
replaces the touch and concern requirement with a rule that permits enforcement of a servitude, unless the servitude: unconstitutional , violates public property,

Question 5

benefit and burden example

Answer 5

The benefit of the covenant is the ability to enforce the covenant.
The burden of the covenant is being subject to it or bound by it.

Question 6

notice

Answer 6

required for running of burden

Question 7

damages

Answer 7

money damages

Question 8

remember this things mean for the burden or benefit to run then need it

Question 9

equitable servitude

Answer 9

equitable relief injunction
A court may find an equitable servitude if:
o The plaintiff can establish all of the elements for a covenant that runs with the land at law, but
the plaintiff seeks equitable relief.

Question 10

e writing

Answer 10

part performance may substitute

Question 11

e intent

Answer 11

need intent to run

Question 12

e hp

Answer 12

not required

Question 13

e vp

Answer 13

benefiT= Many authorities state that vertical privity is not required for the running of the
benefit.
some jurisdiction require it for afirmate es

Burden:
 Traditionally, notice may substitute for vertical privity in respect to the running of the burden.
some jurisdictions require for affirmative es

Question 14

e touch and concern

Answer 14

traditionally need for b and b
modern same as rcrl

Question 15

notice

Answer 15

Under modern recording statutes, notice is now required for the running of the burden.

Question 16

validity of servitudes

Answer 16

A servitude is valid unless it is illegal or unconstitutional or violates public policy.
 Servitudes that are invalid because they violate public policy include, but are not limited to:
o (1) a servitude that is arbitrary, spiteful, or capricious;
o (2) a servitude that unreasonably burdens a fundamental constitutional right;
o (3) a servitude that imposes an unreasonable restraint on alienation….

Question 17

(1) Common-Interest Community:

Answer 17

A real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal:

to pay for the use of, or contribute to the maintenance
to pay for the use of, or contribute to the maintenance
The obligation that binds the owners of individual lots or units to contribute to the support of
common property,

Question 18

negative reciprocal servitude

Answer 18

subdivision common owner parcels out to various purchasers

implied burden
earlier buyers before restriction are not bound

Subsequent Buyers:
o The burden will be imposed on lots (even in the absence of an express restriction in the deed to
those lots) if a common scheme was evident at the time of conveyance of those lots.

common scheme factors A large percentage of lots expressly burdened.
 Oral representations to buyers.
 Statements in written advertisements, sales brochures, or maps given to buyers.
 Recorded plat maps or declarations.

implied benefit
original subdivider may sue unless sold all property

earlier buyer = traditionally can’t sue for restriction
some jurisdictions if common scheme then can sue sp for enforcement of restrict if intended to benefit

sb could sue eb if common scheme (because that restriction was for the benefit of the grantor, his
heirs, and his assigns, and the subsequent purchaser is a successor to the

eh
A condominium or subdivision association may enforce if the covenant is to benefit common
land conveyed by the develop to the association.