Covenants and Equitable Servitudes (Cheat Sheets)

Question 1

What is a real covenant?

Answer 1

a written promise concerning the use of real property.

Question 2

What are the two main types of real covenants?

Answer 2

Real covenants are either affirmative (a promise to do something) or negative/restrictive (a promise to not do something).

Question 3

What are the two sides of a real covenant?

Answer 3

Every real covenant has two sides - the burden side and the benefit side. The burden is the duty to perform and the benefit is the privilege of forcing another party to perform.

Question 4

Does a real covenant run with the land?

Answer 4

Real covenants may run with the land, which means that subsequent land owners may be able to enforce them or be burdened by them, if certain requirements are met. These requirements change, depending on whether the burden or the benefit is being enforced.

Question 5

What is required for the burden of a real covenant to run with the land (i.e. if the successor-in-interest is the defendant then the burden is being enforced)?

Answer 5

In order for the burden of a covenant to run with the land, certain elements must be satisfied. Those are: notice, intent, touch and concern, vertical privity, and horizontal privity.

N I T V H

(nelson is totally very huge)

Question 6

What is required for the benefit to run with the land (i.e. if the successor-in-interest is the plaintiff then the benefit is being enforced)?

Answer 6

In order for the benefit of a covenenat to run with the land, certain elements must be satisfied. Those are: intent, touch and concern, and vertical privity.

I T V

(I’m truly virtuous)

Question 7

Define the element of notice that is required for the burden of a real covenant to run with the land.

Answer 7

Under common law, a subsequent purchaser of land was subject to the burden of covenant regardless of whether he or she had notice.

Modernly, recording statutes have modified the requirements so that a bona fide purchaser without notice of the covenant, and who records his or her own deed will not be bound by it.

There are three types of notice: actual notice, constructive notice, and inquiry notice.

Question 8

Actual notice

Answer 8

refers to direct knowledge of the covenant.

Question 9

Constructive notice

Answer 9

Constructive notice is notice given to the public at large by virtue of the covenant being recorded with a public official. I.e. record notice.

Question 10

Inquiry notice

Answer 10

A party is said to have inquiry notice when a reasonable inspection of the land would have revealed the covenant.

Question 11

Define the element of intent that is required for the burden (or benefit) of a real covenant to run with the land.

Answer 11

The original covenanting parties must have intended that the successors in interest be able to enforce the covenant. This intention is usually found in the language of the original agreement.

Question 12

Define the touch and concern element that is required for the burden (or benefit) of a real covenant to run with the land.

Answer 12

A covenant touches and concerns the land when it directly relates to the use and enjoyment of the land (in either a negative or positive way).

Tip: briefly address and argue the heck out of whichever side you choose.

Question 13

Define the element of vertical privity that is required for the burden (or benefit) of a real covenant to run with the land.

Answer 13

Vertical privity exists between the original party to the covenant and the subsequent owner. In order to be bound by the covenant, the successor must hold the entire estate in land held by the original party.

Question 14

Define the element of horizontal privity that is required for the burden of a real covenant to run with the land.

Answer 14

Horizontal privity requires that at the time the original parties entered into the agreement, they shared some interest in land, independent of the covenant (e.g. landlord and tenant, mortgagee and mortgager, dominant estate and servient estate in an easement, etc.).

Question 15

What are the remedies for breach of a real covenant?

Answer 15

A breach of a real covenant warrants only an award of monetary damages. If an equitable remedy is sought, the promise is no longer enforced as a covenant, but instead is enforced as an equitable sevitude.

Question 16

How may a real covenant be terminated?

Answer 16

A covenant may be terminated by:

(1) a written release;
(2) the merger of the benefited and burdened estates; OR
(3) the condemnation of the burdened property.

Question 17

What is an equitable servitude?

Answer 17

An equitable servitude is essentially a real covenant but is enforced in equity.

Question 18

Does an equitable servitude have to be in writing?

Answer 18

Yes, unless it is a negative equitable servitude (one that prohibits certain behavior).

Question 19

What is a negative equitable servitude?

Answer 19

a negative equitable servitude is one that may be implied from a common plan or scheme for the development of a residential subdivision, so long as landowners have notice of the agreement.

e.g. in a subdivision where many lots have deeds with negative covenants and other lots do not, the negative covenants are still binding on the lots with the incomplete deeds.

Question 20

What is a common plan or scheme?

Answer 20

A common plan or scheme means that the developer intended that all parcels would be bound by the restrictive covenant.

Question 21

How can a common plan or scheme be proven?

Answer 21

This may be evidenced by, among other things:

(1) a recorded plat;
(2) a general plat of restrictions; or
(3) oral representations to early buyers.

Question 22

Define the element of notice of a negative equitable servitude.

Answer 22

To be bound by an implied equitable servitude (or covenant not contained in a deed), a grantee must have had notice of the covenant generally, which means notice that the covenant was contained in the deeds of other. Notice can be actual, constructive, or inquiry.

Question 23

What are the requirements for the burden of an equitable servitude to run with the land?

Answer 23

In order for the burden of an equitable servitude to run with the land, the elements of intent, notice, and touch and concern must be met.

I N T

(I’m not tired)

Tip: if you have already written out the rules, then say “See rule above” and go directly into your factual analysis.

Question 24

What are the requirements for the benefit of an equitable servitude to run with the land?

Answer 24

In order for the benefit of an equitable servitude to run with the land, the elements of intent and touch and concern must be met.

I T

(I triumphed.)

Question 25

What are the remedies for breaches of equitable servitudes?

Answer 25

Because equitable servitudes are covenants enforced in equity, only equitable remedies are available. The usual remedy for an equitable servitude in infunctive relief.

Tip: pay attention to whether they want to know the actual remedies or the relief sought.

Question 26

What defenses for breaches of equitable servitudes are available?

Answer 26

Because an equitable servitude is a creation of equity, all of the common equity defenses apply: unclean hands, acquiescence, estoppel, laches.

Question 27

As a defense for a breach of an equitable servitude, the defense of unclean hands

Answer 27

can be asserted against any plaintiff-landowner who has engaged in the same proibited acitvity as the defendant.

Question 28

As a defense for a breach of an equitable servitude, the defense of aquiescence

Answer 28

can be asserted if the plaintiff-landowner failed to complain or object when another third-party landowner (not named in the action) engaged in the same prohibited activity as the defendant.

Question 29

As a defense for a breach of an equitable servitude, the defense of estoppel

Answer 29

can be asserted against any plaintiff-landowner who acted in a way that led his or her neighbor to rely on the belief that he would not complain of the prohibited activity.

Question 30

As a defense for a breach of an equitable servitude, the defense of laches

Answer 30

can be asserted against any landowner who does not bring suit within a reasonable time.

e.g. neighborhood has changed so significantly, through zoning or non-enforcement of the servitude, that enforcing the servitude would be inequitable.