Covenants and Servitudes

Question 1

Real Covenants

Answer 1

1. They are contractual promises relating to the land between a promisor and promisee and there is a benefited party and a burdened party
2. If the covenant runs with the land? It will bind all of the successor interests

Black Letter Rule: If RC are restricted in some deeds in a common scheme, they would be IMPLIED to every owner in the scheme even if they do not have those restrictions in their own deed.

Question 2

4 Elements for Real Covenants to run with the land and bind owners

Answer 2

ex. Developments, sub-Division, Rural Areas

1. Writing
   A. If there is a plat plant then there is always a writing
2. Intent to Bind Successor
   a. Intent can be found in the writing “And will bind”
   b. Intent of the original parties that the successors be benefited and burdened by the promise
3. Touch and Concern
   a. the promise must be more than a personal obligation between parties
   c. the promise creates a benefit track and burdened track
4. Vertical Privity
   a. The successors must have obtained the land FSA through lawful means by either
   1. Purchasing the property;
   2. Inheriting the property;
   3. receiving the property as a gift;
   4. Adverse possession is NOT bound to the promise of the land.

Question 3

Remedy for Real Covenants

Answer 3

1. Monetary Damages

ex. Home owner association dues

Question 4

Oral Real Covenants/ Equitable servitudes

Answer 4

UNENFORCABLE

Question 5

Type of Equitable Serivitude

Answer 5

1. Implied reciprocal Negative Easement/ Servitude

a. They typically occur in Subdivisions where there is a common plat or scheme.

b. They are real covenants that can be imposed from one property to another even if their lands are NOT adjoined but live in the same area.

c.If the owner of two or more lots convey parts of his property with restrictions, that restriction is going to be IMPLIED to the remaining lot even if it is not expressly contained in the deed.

Question 6

Re-Zoning

Answer 6

1.If there is a pre-existing covenant/servitude which then changes due to zoning , the covenant will trim the zoning and thus not change anything.

3. Does the covenant or the zoning have more power? Depends. On a MC choice, pick the most restrictive option.

Question 7

What is an Equitable Servitude?

Answer 7

1. A promise made between promisor and promisee which benefits one party and burdens another party

Question 8

4 Elements for a servitude to run with the land:

Answer 8

1. Writing
2. Intent
3. Touch and Concern
4. Notice
   * The successor in interest must have notice of the fact there has been a pre existing promise.

a. Express/ Actual Notice: The restriction is explicitly stated in the deed.
b. Constructive Notice: Promise is properly recorded and would show up on a title search
c. Inquiry Notice: purchaser is aware of circumstances that would prompt a reasonable person to investigate
d. Implied Notice: is there a common scheme/ owner?

Question 9

Remedy for Oral Equitable Servitude.

Answer 9

Injunctive relief

Question 10

How do covenants/ Servitudes terminate?

Answer 10

1. Change in Neighborhood zoning
2. Written release from the promisee
3. Merger of the two tracts
4. Expiration of the stated time period
5. Statute removes the promise and restriction becomes illegal