Covenants

Question 1

What is a covenant and why is it different from an easement?

Answer 1

A covenant is a promise to do or refrain from doing something.

It’s unlike and easement because it is a grant (by contract) of interest in the property

Question 2

What are the two types of covenant?

Answer 2

Negative = promise to refrain from doing something.

Affirmative = promise to do something.

Question 3

How do you tell whether the grant is a covenant or an equitable servitude?

Answer 3

Look at the remedy

Money damages = covenant

Injunction = equitable servitude

Question 4

When will a burden of the covenant run with the land?

Remember W I T H N

Answer 4

WRITING;

Original parties INTENDED the covenant to run;

The promise must effect the parties as landowners and not members of the community — TOUCH AND CONCERN

HORIZONTAL AND VERTICAL PRIVITY

• Horizontal = original parties require succession of estate at the time of the covenant.
• Vertical = non-hostile connection between new parties

NOTICE by acquiring party (A1)

Question 5

When will the benefit of a covenant run with the land?

Remember: W I T V

Answer 5

WRITING;

Original parties INTENDED the covenant to run;

The promise must effect the parties as landowners and not members of the community — TOUCH AND CONCERN

VERTICAL PRIVITY — a non-hostile connection between new parties

NOTICE by acquiring party (A1)

Question 6

How is an equitable servitude created?

Answer 6

Oral or in writing

Parties intended the promise to be enforceable by and against assignees

Touch and Concern

Notice (for assignee)

Equitable servitude — no privity required

Question 7

When can an implied equitable servitude or common scheme be implied to prevent a party doing something on the land?

Answer 7

1. At the point of sale, the buyer was aware of a general scheme of residential property (which includes their lot)
2. The defendant lot-holder had notice
   • actual notice
   • inquiry notice
   • record notice

Question 8

If the defendant lot-holder seeks to argue that the implied equitable servitude/common scheme does not apply to them, in what circumstances may they win this argument?

Answer 8

Only when the entire area has changed. Mere pockets of change are insufficient.