Covenants and equitable servitudes

Question 1

Covenants

Answer 1

The benefit of a covenant is the ability to enforce it, whereas the burden is being subject to—i.e., being bound by—the covenant.

The remedy for a breach of a real covenant is damages.

Question 2

Covenants: running with the land

Answer 2

A covenant runs with the land if there is:

(1) A writing that satisfies the statute of frauds;
(2) Intent for the covenant to run with the land;
(3) “Touch and concern”—i.e., the covenant acts both parties as owners of land;
(4) Notice, actual or constructive (i.e., record);
(5) Privity:
(a) Horizontal and strict vertical privity are required for the burden to run;
(b) Only relaxed vertical privity is required for the benefit to run.

Question 3

Covenants: strict vertical privity

Answer 3

Strict vertical privity exists when the successor takes the entirety of the original party’s durational interest.

It is required for a burden to run with the land.

Question 4

Equitable servitudes: running with the land

Answer 4

An equitable servitude binds a successor if there is

(1) A writing
(2) Intended to run with the land
(3) Touching and concerning the land, and
(4) The successor has notice:

(a) actual,
(b) record, or
(c) inquiry—whereas inquiry may not suffice for a covenant to run with the land.

There is no privity requirement.

Question 5

Equitable servitude: termination

Answer 5

Equitable servitudes terminate through the same means as covenants terminate, i.e., by merger or release.

Question 6

Changed circumstances doctrine

Answer 6

The defense of changed circumstances typically is based on whether changes in the surrounding area are sufficiently drastic that it no longer makes sense to enforce the restriction in the covenant, such as when property subject to a residential covenant is surrounded by commercial properties.

Question 7

Covenants: horizontal privity

Answer 7

Horizontal privity exists when there is some shared property interest apart from the covenant itself, such as:

• a landlord-tenant relationship;
• the relationship between a buyer and seller of land; or
• when the parties to a covenant grant each other an easement as part of an agreement.

Question 8

Covenants: notice requirement

Answer 8

Notice of a covenant is not required by the person against whom enforcement of the covenant is sought if the person was not a bona fide purchaser—e.g., if she acquired title by devise or descent.