Covenants Flashcards
What is a covenant?
A promise to do or not do something related to land.
How does a covenant differ from an easement?
It is not the grant of a property interest (like an easement), but is rather a contract or promise regarding land.
Which type are most covenants?
Negative (restrictive)
What is a restrictive covenant?
A promise to refrain from doing something related to land.
I promise not to build for commercial purposes on BA.
Which type of covenant?
negative (restrictive)
What is an affirmative covenant?
A promise to do something related to land.
I promise to paint our common fence.
Which type of covenant?
Affirmative
In which way do we determine whether to construe a given promise as a covenant or as an equitable servitude?
On the basis of the remedy the plaintiff seeks.
Covenant or Equitable Servitude: If the plaintiff wants money damages, construe as a . . .
Covenant
Covenant or Equitable Servitude: If the plaintiff wants an injunction, construe as a . . .
Equitable servitude
In covenant parlance, one tract is _____ by the promise and another is ______
Burdened
Benefitted
When does a covenant’s burden run with the land (i.e., when is it capable of binding successors)?
Pneumonic?
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)
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.
Don’t
Horizontal privity refers to the nexus between whom?
A and B, the original parties
Horizontal privity requires that A and B be in . . . .
Succession of estate
What does it mean to be in succession of estate?
Parties must be in a grantor-grantee, LL-Tenant, or mortgagor-matgagee relationship at the time the promise was made.
Vertical privity refers to the nexus between whom?
A and A-1.
What does vertical privity require?
Some non-hostile nexus between A and A-1 (e.g., contact, device, descent, etc.)
When is the only time that vertical privity will be absent between A and A-1?
If A-1 acquired her interest through adverse possession.
What pneumonic do we use to determine whether the burden runs?
Look WITHN.
When you have to shoulder a burden, look WITHN
What pneumonic do we use to remember when the BENEFIT of a covenant runs?
WITV
What elements must exist for a benefit to run?
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)
Is horizontal privity between A and B required for a benefit to run from A to A1?
No.
Which two elements required for the burden to run are absent from the requisite elements for a benefit to run?
Horizontal privity
Notice
