Covenants & Equitable Servitudes Flashcards
Burden Runs with the land if…
WITHN
Writing Intent Touch & Concern Horizontal & Vertical Privity Notice
Benefit Runs with the land if…
WITV
Writing
Intent
Touch & Concern
Vertical Privity
Remedy for Real Covenant Violation
Money damages only
Real Covenant = Real Cash
Remedy for Equitable Servitude
Injunction/ equitable remedy
Creation of Equitable Servitude
WITNES
Writing Intent Touch & Concern Notice Equitable Servitude
Real Covenant - definition
Written promise (contractual limitation) to do or not do something related to land.
Equitable Servitude - definition
Written promise that equity (injunctive relief) will enforce against successor of burdened land who has notice.
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.
Real Covenant running with the land
Equitable Servitude
Equitable Servitude Implied by Common Scheme
Implied Beneficiaries of Covenants
Horizontal Privity – examples of relationships
Grantor/Grantee
Landlord/Tenant
Mortgagor/Mortgagee
Debtor/Creditor
Types of Notice
AIR
Actual
Inquiry
Record
Record Notice – 2 views wrt Common Grantor
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.
- 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.
Defense to Equitable Servitude:
Changed Conditions
Changed Conditions –
conditions have changed so pervasively that neighborhood character changed. Prevents enforcement of ES.
The Notice requirement protects..
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.
Termination of Covenants
- written release
- merger of benefited and burdened estates
- condemnation of burdened property
Defenses to Equitable Servitude/ Real Covenant
- Lack of Notice
- Changed Neighborhood Conditions
- Anticipatory Repudiation
- Invalid Assignment
Covenants Implied from Common Scheme or Plan
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.
Covenants:
If the benefited party is violating a similar servitude on her own land, the burdened party will raise the defense of:
Unclean hands
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:
Changed Conditions
Covenants:
If the benefited party previously consented to another’s violation of the servitude, the burdened party should assert the defense of:
Acquiescence
If someone burdened by an equitable servitude can raise the defense of estoppel to prevent its enforcement, it is probably because the benefited party:
Acted so that a reasonable person would believe she abandoned the covenant, and the burdened party relied on this.
