covenants running with the land

Question 1

what is a real convenant?

Answer 1

a written promise to do something or refrain from doing something on land

Question 2

what are the requirements for the burden to run re: a real covenant?

Answer 2

1. intent
2. notice - a subsequent purchaser for VALUE must have had actual notice at the time of purchase
3. horizontal privity - some relationship b/t the parties besides the covenant, i.e. mortgagor-mortgagee, transferor-transferee
4. vertical privity – to be bound, the successor in interest to the covenanting party must hold the ENTIRE DURATIONAL INTEREST held by the covenantor at the time the covenant was made
5. touch and concern the land

Question 3

what are the requirements for the benefit to run re: a real covenant?

Answer 3

1. intent
2. vertical privity
3. touch and concern

Question 4

how do you terminate a real covenant?

Answer 4

(obvi, not meet the requirements to begin with)

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

Question 5

what is an equitable servitude?

Answer 5

a covenant IN WRITING that equity will enforce against hte assignees of the burdened land who have notice of the covenant; usual remedy is an injunction

Question 6

what is a negative equitable servitude?

Answer 6

such as common scheme for development

Question 7

when is a negative servitude implied?

Answer 7

only implied if, at the time that sales in the sbudivision began, the developer had a plan that all parcels would be subject to the restriction.

1. recorded plat
2. general pattern of restrictions; or
3. oral representaitions to early buyers

Question 8

re: equitable servitude, what is req’d for burden to run?

Answer 8

1. intent - covenanting parties intended that the servitude be enforceable by and against assignees;
2. the successor of the promisor has ACTUAL, INQUIRY, OR RECORD notice of the servitude;
3. the covenant touches nd concerns the land

Question 9

. re: equitable servitde, req’s for benefit to run?

Answer 9

1. original parties so INTENDED

2. servitude TOUCHES AND CONCERNS the land

Question 10

how to terminate an equitable servitude?

Answer 10

same as w/ real covenant

1. written release
2. merger or
3. condemnation

Question 11

equitable defenses to enforcement of an equitable servitude:

Answer 11

1. unclean hands - person seeking enforcement is violating a similar restriction on his own land
2. benefited party acquisced in violated of the servitude
3. estoppel
4. benefitted party fails to bring suit against violator w/i a R time – laches
5. neighborhood has changed so significantly that enforcemnt would be inequitable