Covenants, Easements, Other Rights in Land Flashcards
Covenants vs. Equitable Servitudes
Covenant = contract
Breach = damages
Need privity
Equitable servitude = equity
Breach = equitable relief/injunction
Do not need privity
Covenant Requirements
1) Privity (Horizontal and Vertical)
2) Intent in Writing to Run w/ Land and Bind Successors
3) Notice
4) Touch and Concern the Land
Covenant
Promissory agreement (positive or negative) that binds owners in land
-Note–don’t need covenant if original parties still on land/no successors in interest–that’s just a contract
Easement
Interest in land (positive or negative) usually connected w/ ownership of another piece of land
Equitable servitudes
Enforced in equity–convenants/agreements that are not full covenants, but may be enforced in equity
Run with Land
Successors in interest either benefitted or burdened
Horizontal Privity
Relationship between original covenantor and original covenantee
Need
1) Privity of contract AND
2) Connection with land = MUST BE:
Grantor/Grantee and/or Common Grantor OR
Landlord/Tenant OR
Mortgagor/Mortgagee
CANNOT have if just neighbors–no connection w/ land
Vertical Privity
Relationship between original party to covenant and successor in interest
Need
1) Transfer of entire estate (ex.–sell all owns vs. leases)
Intent re: Covenants, Equitable Servitudes
Must have writing (SoF applies to both ) that shows intent to
1) have covenant/servitude run w/ land AND
2) have covenant/servitude bind successors
Covenant Notice
Current owner of servient estate must take with notice of covenant
Actual OR constructive OR inquiry notice
Touch and Concern
Requirement for covenants and equitable servitudes
Must have dominant AND servient estates
Dominant Estate
Estate that is benefitted–increased use and enjoyment
Ex.–two parcels, easement to cross land–person who can cross has the dominant estate
Servient Estate
Estate that is burdened–reduced use and enjoyment
Ex. two parcels, easement to cross land–person who has to let other cross land has servient estate
Types of Notice
Actual: actually know
Constructive: if recorded = constructive notice
Inquiry: have enough info that reasonable person would inquire further (ex. see road crossing land, no houses in area have more than one story)
Constructive Notice
If recorded = constructive notice
Inquiry Notice
Was there enough info available that reasonable person would ask further?
Ex.–every house is same color–r. person would ask if there’s some reason for that
Affirmative Covenant
Covenant requiring someone to do something
CANNOT run w/ land–no vertical privity, doesn’t touch and concern (in practice–line b/tween affirmative and negative blurry–but if promise to mow lawn, won’t run w/ land)
Negative Covenant
Covenant forbidding servient estate from doing something
Can run w/ land (vs. affirmative–although line blurry)
Requirement for Equitable Servitude
1) Touch and Concern land–burden runs w/ servient, benefit runs w/ dominant
AND
2) Intent in writing to run w/ land and bind successors (writing exception: implied reciprocal)
AND
3) Notice
Implied Reciprocal Servitude
Two ways to read:
1) If one owner sells lots with restrictions that benefit owner then restriction becomes mutual = owner also bound
2) IF common scheme/plan for development AND plan evident at time of conveyance (ex. can look around and see) = servitude imposed on all plots EVEN IF not expressly in all
DOES NOT require writing (SoF N/A, implied)
ONLY if negative easement
Key: common scheme or plan
Common Scheme or Plan
Factors to look at
-Large % of lots expressly burdened
-Oral representations to buyers
-Statements in ads to buyers
-Recorded plat maps/other declarations
Often–filed declaration containing restrictions (“CC&Rs–covenants, conditions, and restrictions)
Enforcement of Covenants
Can be enforced by
1) Original grantor OR
2) Any purchaser affected by common scheme OR
3) Condo or subdivision/property assoc. for land conveyed to it
Termination of Covenants
1) Written Release
2) Merger of dominant and servient estates
3) Abandonment (ex. covenants haven’t been enforced)
4) Estoppel (ex. relied on waiver)
5) Changed circumstances such that reason behind the restriction no longer valid (ex. no one enforcing, for x building + building destroyed–have to reneg.)
Cure = damages
Termination of Equitable Servitudes
Same as covenants:
) Written Release
2) Merger of dominant and servient estates
3) Abandonment (ex. covenants haven’t been enforced)
4) Estoppel (ex. relied on waiver)
5) Changed circumstances such that reason behind the restriction no longer valid (ex. no one enforcing, for x building + building destroyed–have to reneg.)
Cure = injuction/equitable relief
