Covenants & Equitable Servitudes Flashcards
Real Covenant
Nonpossessory interest in land that obligates holder to do or refrain from doing something to the land. Remedy is damages
Equitable Servitude
Covenants/burden on real property that will be enforced if burdened estate had notice. Remedy is injunctive relief, not damages.
Privity not required!
Enforce benefit of a covenant
1) writing (SOF)
2) intent to run w/land
3) vertical privity (successor holds entire interest held by predecessor)
4) touch & concerns land (makes land more useful/valuable to benefitted party)
Enforce burden of a covenant
Same requirements as benefit (writing, intent, VP, and touch/concern) PLUS
1) horizontal privity (2 parties share interest in land independent of the covenant)
2) new owner has notice (actual, constructive, inquiry)
writing, intent, VP, HP, notice, & touch & concern
Enforce benefit of an equitable servitude
1) writing (SOF)
2) intent to be enforced
3) touch & concern land
Enforce burden of an equitable servitude
Same requirements as burden (writing, intent, touch and concern) PLUS new owner has notice
Notice
Actual
Constructive = recorded in previous conveyances
Inquiry = revealed by land inspection
Horizontal Privity
Covenant set out in conveyance of the land between grantor & grantee. Covenant directly related to land and not just a mere contract.
Vertical Privity
New owner has same interest as original owner
Touch and concern the land
The land itself is benefitted or gains value from the covenant
Changed Circumstances Doctrine
Applies when there are drastic changes to the land such that it’s unreasonable to comply with former restrictions placed by covenants/equitable servitudes.
High bar
Restrictive Covenant
Promise to act or refrain from acting in regard to the land. Liability for breach may attach to anyone with horizontal or vertical privity.
