Covenants

Question 1

Elements of a real covenant?

Answer 1

(1) enforceable promises under contract law (2) intent for promises to run with the land (3) touch and concern land (4) privity of estate

Question 2

Elements of a real covenant in Texas?

Answer 2

(1) enforceable contract (2) intent to run with the land (3) proof of intent (4) privity (5) touch and concern land (both benefit and burden must touch and concern the land)

Question 3

What are the three types of privity?

Answer 3

Mutual privity; horizontal privity; vertical privity. Texas requires mutual or horizontal and vertical.

Question 4

How to Terminate covenants? 8 ways

Answer 4

i. Express time stated in covenant
ii. Statutory duration
iii. Release
iv. Merger
v. Estoppel, prescription laches
vi. Unclean hands
vii. Acquiescence (allowed some breaches, then cant complain about later breach)
viii. Change conditions within restricted area

Question 5

What do you use if a covenant doesn’t meet all the requirements?

Answer 5

Equitable servitude

Question 6

What are the elements of equitable servitude?

Answer 6

(1)successor of burdened land took with notice of the restriction (2)covenant limits the use of the burdened land (3)covenant benefits the land of the party seeking to enforce it

Question 7

What are the requirements of an Implied reciprocal equitable servitude?

Answer 7

i. Lots in a residential subdivision originally owned by common owner/developer
ii. Owner/developer imposed restriction in deeds of most conveyed parcels
iii. Owner/developer imposed a general plan upon subdivision (uniform restrictions on most deed, recorded declaration)