Covenants and Equitable Servitudes

Question 1

Define a real covenant

Answer 1

Promise concerning use of the land that runs to successors to the promise

Question 2

The benefit of the covenant is the ability to —-?

The burden of the covenant is being —-?

Answer 2

benefit: enforcement
burden: subject to it

Question 3

What are the elements required for a covenant to run?

Answer 3

1. writing
2. intent
3. Touch and concern
4. Notice
5. Privity

Question 4

Are real covenants subject to recording acts?

Answer 4

Yes. And statute of frauds

Question 5

How do affirmative and negative covenants touch and concern the land?

Answer 5

Negative: restrict what you can do with the land
Affirmative: paying money (ex: HOA)

Question 6

True or false: horizontal privity is required to run both the burden and benefit

Answer 6

False. Required for burden, but not benefit

Question 7

To run the burden of the covenant to the successor, the successor must take the original party’s ______ interest?

Answer 7

Entire interest = strict vertical privity required to run the burden

Question 8

To run the benefit of the covenant to the successor, the successor need only take an interest that is _____ of the original party’s estate.

Answer 8

Carved out = relaxed vertical privity

Question 9

What is the analysis for running the burden/benefit?

Answer 9

1. Which one are we running - burden or benefit?
2. Benefit == relaxed vertical privity only
3. Burden == horizontal privity and strict vertical privity

Question 10

The remedy for a breach of real covenant is…?

Answer 10

Damages

Question 11

What are the main differences b/t real covenants and equitable servitudes

Answer 11

1. Servitudes have no privity requirement
2. Servitudes can only seek injunctive relief

Question 12

What is an implied reciprocal servitude?

Answer 12

Kind of equitable servitude, comes up in planned communities. Does not require writing.

1. Developer must intend to create covenant
2. Promises must be reciprocal
3. Must be negative
4. Successor must be on notice of restriction
5. Must be a common plan or scheme.

Question 13

Explain the changed circumstances doctrine

Answer 13

restriction no longer makes sense due to drastic changes in the surrounding area since restriction was put into place

Question 14

What are the three types of common interest communities?

Answer 14

1. Owner’s association
2. Condominium
3. Cooperative

Question 15

True or false: Governing documents that outline controlling covenants and restrictions are valid so long as they are not illegal, against public policy, or unconstitutional

Answer 15

True

Question 16

A new rule in a common interest community must be reasonably related to further a ________ purpose of the association

Answer 16

Legitimate (think rational basis)

Question 17

Does the business judgment rule apply to the governing body of a common interest community?

Answer 17

Yes – shielded from honest but mistaken business decisions

Question 18

Re removal: The ______ of real property is generally entitled to the chattel, unless…?

Answer 18

Buyer, unless the seller reserves in the contract the right to keep chattel

Question 19

What is the new rule re: trespassers and fixtures/improvements

Answer 19

OK, so long as in good faith