Covenants/Equitable Servitudes

Question 1

Covenants

Answer 1

A covenant is a written promise (contractual limitation) to do or not do something related to the land. The covenant can either be restrictive, a promise to refrain from doing something with the land, or affirmative, a promise to do something related to the land.

Question 2

BURDEN to run with the land

Answer 2

WITH VN (writing, intent, touch and concern, horizontal privity, vertical privity, notice)

Question 3

BURDEN - Writing

Answer 3

The original promise must be in a writing. Here…

Question 4

BURDEN - Intent

Answer 4

The covenanting parties must have intended that the covenant would run with the land and bind all future successors. Here…

Question 5

BURDEN - Touch and Concern

Answer 5

The promised performance makes the land more valuable or useful. The promise must directly benefit the land, not simply as members of the community at large. (e.g. CCR to maintain common areas runs, but requirement to recycle does not)

Question 6

BURDEN - Horizontal Privity

Answer 6

At the time of the covenant, the original parties (A to B) must have shared some interest in the land independent of the covenant, and there must be a conveyance of the property interest between the parties.

Question 7

BURDEN - Vertical Privity

Answer 7

There must be a non-hostile nexus between the original promising party and the subsequent purchaser of the property, meaning the property was acquired by contract, devise, or descent - not acquired by adverse possession. Here…

Question 8

BURDEN - Notice

Answer 8

A subsequent purchaser must have had actual, inquiry, or record notice of the covenant at the time of his purchase for him to be bound by that covenant. Here…

Question 9

BENEFIT to run with the land

Answer 9

WIT V (writing, intent, touch and concern the land, vertical privity)

Question 10

BENEFIT - Writing

Answer 10

The original promise must be in a writing. Here…

Question 11

BENEFIT - Intent

Answer 11

The covenanting parties must have intended that the covenant would run with the land and bind all future successors. Here…

Question 12

BENEFIT - Touch and Concern the Land

Answer 12

The promised performance makes the land more valuable or useful. The promise must directly benefit the land, not simply as members of the community at large. (e.g. CCR to maintain common areas runs, but requirement to recycle does not)

Question 13

BENEFIT - Vertical Privity

Answer 13

There must be a non-hostile nexus between the original promising party and the subsequent purchaser of the property, meaning the property was acquired by contract, devise, or descent - not acquired by adverse possession. Here…

Question 14

BENEFIT to run with the land (WIT V)

Answer 14

Most benefits run with the land because Horizontal privity and notice are not required. However, where horizontal privity is lacking, the promissee’s successor can enforce the covenant against the promisor, but not against the promisor’s successors. The benefit will run with the land if the following elements are met: writing, intent, touch and concern the land, vertical privity.

Question 15

Termination of Covenant

Answer 15

A covenant can be terminated by 1) signed writing 2) merger of the benefitted and the burdened estates, or 3) condemnation of the property through a changed condition that makes ALL lots in a subdivision unusable for the specified use. Here…

Question 16

Remedy - Money Damages

Answer 16

A breach of a real covenant is remedied by MONEY DAMAGES. If an injunction is sought, the promise must be enforced as an equitable servitude rather than a real covenant. Here…

Question 17

Equitable Servitudes (WIT N)

Answer 17

An equitable servitude is a promise that regardless of whether it runs with the land, equity will enforce against successors of the burdened land who have NOTICE of the covenant. No privity is required. Injunctive relief is the remedy.

Question 18

ES - BURDEN to run with land

Answer 18

writing, intent, touch and concern the land, notice

Question 19

ES - Common Scheme Doctrine

Answer 19

A reciprocal negative servitude will be implied from a COMMON SCHEME if the developer had a general scheme of residential development, and the buyer’s deed did not include the promises, but he had notice of the promises in the prior deeds (actual, inquiry, or record). Here…

Question 20

Support - Lateral Support

Answer 20

A landowner has a right to have his land supported in its natural state by adjoining land. Neighboring owners will be STRICTLY LIABLE for causing adjacent land to collapse if it is shown the land would not have collapsed anyway. If an adjacent structure collapses with the land there must be a showing of negligence to recover damages.

Question 21

Support - Subjacent Support

Answer 21

Landowners have a right to the surface of their land not collapsing where mineral rights have been legally severed from the surface rights. Here…

Question 22

Eminent Domain

Answer 22

The Government’s 5A powers allow it to take private property for public with just compensation.

Question 23

Eminent Domain - Regulatory Taking

Answer 23

The taking can be an explicit government condemnation, or it can be an implicit or regulatory taking where government restrictions take ALL ECONOMIC VALUE from the landowner’s property without an actual physical entry onto the land. A temporary restriction on use and a mere decrease in economic value to not qualify as regulatory takings. Here…

Question 24

Zoning

Answer 24

Pursuant to its police powers, a state may enact statutes to reasonably control the use of land for the protection of the HEALTH, SAFETY, MORALS, AND WELFARE of its citizens. a nonconforming use is when an existing use is grandfathered into a new zoning restriction. A variance is special permission to depart from a zoning requirement based on a showing of undue hardship and a proof the variance will not decrease property values. Here…