Covenants Flashcards
What is Horizontal Privity?
A specified relationship between the original promisor and promisee. (Even if successors in interest are trying to enforce the covenant, you must look only to the original covenanting parties to determine this kind of privity)
What is Vertical Privity?
A specified relationship between an original party to the contract and an assignee (or estate successors in interest)
What is the main difference between a real covenant and an equitable servitude?
The primary difference is with the remedy being sought - the remedy the plaintiff is seeking
What are the most common remedies with real covenants and equitable servitude’s?
Injunctions
The Fair Housing Act (FHA section 3602(k))
prohibits discrimination in housing based on race, color, religion, sex, national original, familial status or handicap.
What does familial status in the Fair Housing Act mean?
means that one or more individuals (who have not attained the age of 18 years) being domiciled with:
- a parent or another person having legal custody
- the designee of parent or other person having custody, with written permission of parent or other person.
applies to any person who is pregnant or is in the process of securing legal custody of someone under 18
What is a real covenant (one that runs with the land)?
If a covenant is made and there is horizontal and vertical privity then it runs with the land
Does MO require horizontal privity?
yes
What are the 3 requirements for enforcement of a covenant in equity?
- intent that the benefit and/or burden of the covenant run to successors of the original parties
- notice on the part of purchasers of the original promisor
- that the covenant touch and concern the land
What are the 3 essentials of a real covenant?
- it must appear that the grantor and grantee intended that the covenant should run with the land
- it must appear that the covenant is one touching or concerning the land
- it must appear tat there is a privity of estate between the promissee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant
Is privity required when a third party is acting as an agent of the property owner?
No - for example a homeowners association can enforce a covenant to pay dues
When is a restrictive covenant enforceable?
so long as it provisions remain of substantial value
When will courts enforce restrictive covenants?
courts will not engage in balancing of equities but will enforce restrictive covenants unless there is a substantial change in the neighborhood
Can a landowner abandon property to which he holds a perfect title?
No - he will be liable for any dues or taxes associated with the property still.
What is the difference in damages between real covenants (enforceable by law) and equitable servitudes (enforceable by equity)?
Real covenants - can seek monetary damages + specific performance
Equitable servitudes - can only seek specific performance
