Covenants

Question 1

What elements are required to create a covenant that runs with the land?

Answer 1

1. Privity
2. Intent
3. Notice
4. Touch and concern the land

Question 2

What types of privity are required to create a covenant that runs with the land

Answer 2

1. Horizontal privity
2. Vertical privity

Question 3

What is horizontal privity?

Answer 3

Horizontal privity is the relationship between the original covenantor and covenantee

Question 4

What is required to establish horizontal privity?

Answer 4

Privity of contract in connection with the land, including landlord/tenants, grantor/grantees, mortgagor/mortgagees

Question 5

What is vertical privity?

Answer 5

The relationship between an original party and the successor in interest to the original party (privity of estate)

Question 6

What is required to establish vertical privity?

Answer 6

Vertical privity will only exist when the holder of the servient estate transfers all of their interest in the servient estate to the new owner

Question 7

What is required to satisfy the intent element of creating a covenant?

Answer 7

The writing creating a covenant is subject to the statute of frauds and msut include language showing parties’ intent for the covenant to bind successors in interest

Question 8

What is required to satisfy the notice requirement for creating a covenant?

Answer 8

The current owner of the servient estate must take notice of the restriction (applicable to servient estate owner only)

Question 9

What is required for a covenant to touch and concern the land

Answer 9

Servient estate: a restriction must reduce the use and enjoyment of the servient estate

Dominant estate: the restriction must increase the use and enjoyment of the dominant estate

Question 10

What is the difference between a covenant that runs with the land and an equitable servitude?

Answer 10

Covenants that run with the land may be enforced by injunction or damages, whereas equitable servitudes only have equitable remedies (e.g. injunctions) in cases of infringement.

Question 11

How are equitable servitudes created?

Answer 11

1. touch and concern the land
2. intent
3. notice

Question 12

What is required for an equitable servitude to touch and concern the land

Answer 12

The burden of the servitude must run with the servient estate, while the benefit must run with the dominant estate

Question 13

What is the intent requirement regarding equitable servitudes?

Answer 13

The writing creating an equitable servitude is covered by the stattue of frauds and must include language that shows parties’ intent for the restriction to run with the land and bind future landowners

Question 14

What is required for the notice element of equitable servitudes?

Answer 14

Current owner of the servient estate must have taken the estate with notice.

Question 15

How are implied reciprocal servitudes created?

Answer 15

Implied reciprocal servitudes are created where there are filed declarations containing restrictions on a common scheme of development

Question 16

What are the nature of implied reciprocal servitudes?

Answer 16

Implied reciprocal servitudes may only be negative restrictions

Question 17

Is there a writing requirement for implied reciprocal servitudes?

Answer 17

No, because they are implied

Question 18

How may the existence of an implied reciprocal servitude be demonstrated by showing a common scheme or plan?

Answer 18

1. establish that a common scheme exists
2. current owner of the servient estate took with notice of the restriction

Question 19

What are factors that show whether a “common scheme” existed for the purposes of an implied reciprocal servitude?

Answer 19

-a large percentage of lots are expressly burdened
-oral representations to buyers
-statements in advertisement sto buyers
-recorded plot maps
-other declarations

Question 20

How can a covenant or equitable servitude be terminated?

Answer 20

Covenants and servitudes may be terminated by:
1. written release
2. merger of the dominant and servient estates
3. abandonment
4. estoppel
5. changes circumstances so significant that the reason behind the restrictions is no longer valid

Question 21

What is a covenant?

Answer 21

A promise that attaches to the land in which the covenanter promises to do or refrain from doing something on their own land