Covenants

Question 1

What is a covenant?

Answer 1

A promise to do or not do something related to land.

Question 2

How does a covenant differ from an easement?

Answer 2

It is not the grant of a property interest (like an easement), but is rather a contract or promise regarding land.

Question 3

Which type are most covenants?

Answer 3

Negative (restrictive)

Question 4

What is a restrictive covenant?

Answer 4

A promise to refrain from doing something related to land.

Question 5

I promise not to build for commercial purposes on BA.

Which type of covenant?

Answer 5

negative (restrictive)

Question 6

What is an affirmative covenant?

Answer 6

A promise to do something related to land.

Question 7

I promise to paint our common fence.

Which type of covenant?

Answer 7

Affirmative

Question 8

In which way do we determine whether to construe a given promise as a covenant or as an equitable servitude?

Answer 8

On the basis of the remedy the plaintiff seeks.

Question 9

Covenant or Equitable Servitude: If the plaintiff wants money damages, construe as a . . .

Answer 9

Covenant

Question 10

Covenant or Equitable Servitude: If the plaintiff wants an injunction, construe as a . . .

Answer 10

Equitable servitude

Question 11

In covenant parlance, one tract is _____ by the promise and another is ______

Answer 11

Burdened

Benefitted

Question 12

When does a covenant’s burden run with the land (i.e., when is it capable of binding successors)?

Pneumonic?

Answer 12

WITHN

Writing (promise b/w A and B was written)

Intent (original parties intended that the covenant would run)

Touch and concern the land (the promise must affect the parties legal relations as landowners, and not simply as members of the community at large)

Horizontal and vertical privity (both needed for burden to run)

Notice (A-1 knew of the promise when she took)

Question 13

Covenant to pay money to be used in connection with the land (such as HOA fees) and covenants not to compete do/don’t touch and concern the land.

Answer 13

Don’t

Question 14

Horizontal privity refers to the nexus between whom?

Answer 14

A and B, the original parties

Question 15

Horizontal privity requires that A and B be in . . . .

Answer 15

Succession of estate

Question 16

What does it mean to be in succession of estate?

Answer 16

Parties must be in a grantor-grantee, LL-Tenant, or mortgagor-matgagee relationship at the time the promise was made.

Question 17

Vertical privity refers to the nexus between whom?

Answer 17

A and A-1.

Question 18

What does vertical privity require?

Answer 18

Some non-hostile nexus between A and A-1 (e.g., contact, device, descent, etc.)

Question 19

When is the only time that vertical privity will be absent between A and A-1?

Answer 19

If A-1 acquired her interest through adverse possession.

Question 20

What pneumonic do we use to determine whether the burden runs?

Answer 20

Look WITHN.

When you have to shoulder a burden, look WITHN

Question 21

What pneumonic do we use to remember when the BENEFIT of a covenant runs?

Answer 21

WITV

Question 22

What elements must exist for a benefit to run?

Answer 22

Writing (original promise b/w A and B was in writing)

Intent (A and B intended the benefit to run)

Touch and concern (the promise affects the parties as landowners)

Vertical privity (a non-hostile nexus between B and B1)

Question 23

Is horizontal privity between A and B required for a benefit to run from A to A1?

Answer 23

No.

Question 24

Which two elements required for the burden to run are absent from the requisite elements for a benefit to run?

Answer 24

Horizontal privity

Notice