Covenants & Equitable Servitudes

Question 1

Burden Runs with the land if…

Answer 1

WITHN

Writing
Intent
Touch & Concern
Horizontal & Vertical Privity
Notice

Question 2

Benefit Runs with the land if…

Answer 2

WITV

Writing
Intent
Touch & Concern
Vertical Privity

Question 3

Remedy for Real Covenant Violation

Answer 3

Money damages only

Real Covenant = Real Cash

Question 4

Remedy for Equitable Servitude

Answer 4

Injunction/ equitable remedy

Question 5

Creation of Equitable Servitude

Answer 5

WITNES

Writing
Intent
Touch & Concern
Notice
Equitable
Servitude

Question 6

Real Covenant - definition

Answer 6

Written promise (contractual limitation) to do or not do something related to land.

Question 7

Equitable Servitude - definition

Answer 7

Written promise that equity (injunctive relief) will enforce against successor of burdened land who has notice.

Question 8

In this situation, which theories could a neighbor sue on, to enforce the promise?

Developer includes promise to pay for security force by holder of deed to each lot in subdivision. Promise not included in subsequent re-deeds.

Answer 8

Real Covenant running with the land
Equitable Servitude

Equitable Servitude Implied by Common Scheme
Implied Beneficiaries of Covenants

Question 9

Horizontal Privity – examples of relationships

Answer 9

Grantor/Grantee
Landlord/Tenant
Mortgagor/Mortgagee
Debtor/Creditor

Question 10

Types of Notice

Answer 10

AIR

Actual
Inquiry
Record

Question 11

Record Notice – 2 views wrt Common Grantor

Answer 11

Wrt record notice, courts are split.
1. Some take the view that a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor.

2. The better view is that subsequent buyer does not have record notice of the contents of those prior deeds transferred from the common grantor to others.

Question 12

Defense to Equitable Servitude:

Changed Conditions

Answer 12

Changed Conditions –

conditions have changed so pervasively that neighborhood character changed. Prevents enforcement of ES.

Question 13

The Notice requirement protects..

Answer 13

only purchasers for value. Someone who does not give value may be bound by a covenant at law (not equity) even if he has no actual or constructive notice of the covenant.

Question 14

Termination of Covenants

Answer 14

1. written release
2. merger of benefited and burdened estates
3. condemnation of burdened property

Question 15

Defenses to Equitable Servitude/ Real Covenant

Answer 15

1. Lack of Notice
2. Changed Neighborhood Conditions
3. Anticipatory Repudiation
4. Invalid Assignment

Question 16

Covenants Implied from Common Scheme or Plan

Answer 16

A reciprocal negative servitude will be implied if, at the time that the parcels were sold, the developer had a common scheme or plan that all parcels in the subdivision would be developed w/in the terms of the negative covenant.

This is typically used when the covenant does not appear in the deed.

Question 17

Covenants:

If the benefited party is violating a similar servitude on her own land, the burdened party will raise the defense of:

Answer 17

Unclean hands

Question 18

Covenants:
If the benefited party is attempting to enforce a servitude in a neighborhood that has changed significantly since the time the servitude was created, the burdened party will raise the defense of:

Answer 18

Changed Conditions

Question 19

Covenants:
If the benefited party previously consented to another’s violation of the servitude, the burdened party should assert the defense of:

Answer 19

Acquiescence

Question 20

If someone burdened by an equitable servitude can raise the defense of estoppel to prevent its enforcement, it is probably because the benefited party:

Answer 20

Acted so that a reasonable person would believe she abandoned the covenant, and the burdened party relied on this.