Definitions Flashcards
elements of equitable servitude
writing
binding
touching
notice
created in writing
the original promise must be in the form of a writing that was signed or accepted by both he original owner of the burdened parcel to satisfy the statute of frauds
intended to bind the future tenants
binding
Does the writing indicate that the benefit and burden of the promise bind and benefit “assigns” or heirs, successors and assigns of the original parties.
does it touch and concern the land
touching
in order to touch and concern the land the promise must meet 1 of the 4 following
1. physical touching of the land
2. use restrictions
3. payment of money
4. economic impact
Touching #1
PUPE
Does the promise actually touch the land: this could invovles maintenance, repairing, or building structures of the land itself.
Touching #2
PUPE
Use Restriction: does the promise relate to using or not using the land in a certain way
Example: which could be using the land for only residential use or prohibiting 3-tenement house.
touching #3
PUPE
Does the promise involve a Payment of money for the use of the land or improvements of the land.
example: HOA fees, for mantenance of common areas or utilities access.
Analyze how the payment of money is connected to the land!
Touching #4
PUPE
Does the promise include and economic impact on the land byt making the burdened parcel less valuable and the benefitting parcel more valuable.
Example: consider policy arguments
PUPE (touch and concern)
Physical Touching
Use Restrictions
Payment of Money
Economic Impact
Was the Covenent in Gross
Does the berden only benefit one person. If we need to apply the majority and minority rules.
Covenent in Gross: Majority rule
Common Law
Can only be enforced against the original promisor and not the successor
Covenent in Gross: Minority rule
the promise may be enforced against a successor. HOW!
Binding: is the burden of the land Binding on the successors (run with the land)?
We need to determine 3 elements to confirm that burden of the promise is binding on the land’s successor?
privity: 1. Horizontal 2. vertical and 3. notice to bonified purchaser
Horizontal Privity Exists
key words strangers in title page 222
HP exists if- it requiresd a land transfer, the original parties are either 1. landlord/tenant 2. grantor/grantee, or 3. one party holds and easement right in the others party’s land.
meaning that there was an original land transfer between the original promisor and promisee.
Vertical Privity Exists
Vertical Privity Exists if: the original promisor B conveyed his entire estate to B1
traditionally for vertical privity ot exist the entire estate must be sold to the successor.
The Burden side: if B1 leases the estate from b, vertical privity is lost.
the Benefit side: typically anyone who takes posession of the Promisees property can sue the promisor for breach. to include a lease. HOA fees.
Notice to Bonafide Purchaser exists if:
if the successor B1 is a bona fide purchaser of hte burdened parcel from the original promosor b, the burden of the promise binds the purchaser b1 only if b1 had actual or constructive notivce of the real covenant.
what if not burden to run to successors!
if burden does not run we can use injunctive!
the benefit and the burden analysis
a convenant is
we are taking about a contract with damages v. an equitable servidute wi
is a contract between parties that meets techinical requireements and is is bining against one who later buys the promisors land or is enforeable by one who later buts the promisors land.
the modern approach
abandons the privity requirement: you must ask what jurisdiction are we in?
understanding the burdened side and the benefit side.
- The Promisor is the burdened side
- The Promisee is the benefited side.
ask youself
what is the intent
what is policy (notice, elderly etc)
three tests of reasonablness
- third restatement
- Davidson
- -Nahrstedt
what is the davidson test
the test is for reasonableness (8 factors) with touch and concern as one factor.
Nahrstedt test.
Unreasonableness Test: (based on the development as a whole, presumption of reasonable)
* whether the restriction is enforced unless they are arbitrary, violate public policy, or impose a disproportionate burden (3 attacks)
* The burden in on the P
* “unreasonableness” is not determined by the specific circumstances of the homeowner but rather by its effect on the development as a whole.
* establishes a high standard
what is the 3rd rest test
enforceable unless: unreasonable, arbitrary or capricious
The homeowners’ association cannot be “arbitrary and capricious” in its enforcement of the rules.[3] That means there must “be some rational relationship of the decision or rule to the safety and enjoyment of the [common interest community].”[4] It also means that HOAs have an obligation to enforce the rules consistently and fairly, for the good of the community.
Equitable Servitude
An equitable servitude is a nonpossessory interest in land that operates much like a covenant running with the land. HowevertThe distinction between the two is that the remedy provided by and equitable servidude is “injunctive relief”.
how does an equitable servitude satisfy the statute of frauds
3 ways
- acceptance of a deed poll: that is accepted by the grantee/promisor
- reference to a filed plat: this would be in a plat for a subdivsion, the plat must be recorded.
- implied reciprocal servitude: it is in my deed and the developer promises to put it in everyone elses deed.
what are the elements of ES
- Writing
- Binding (intent to be bound)
- Touching (PUPE)
- Notice (actual, Inquiry or constructive) (look at the enforcer)
if it is a plat plan or a development with a restriction, who can sue
anyone of the house in the development
statements for exam
for the burden to run the original parties must have intended for the burden to run.
4 other ways to terminate a covenant
Other ways to terminate a covenant:
1. Language in the instrument itself
2. Merger; similar to easements
3. Release: both parties ague in writing
4. Prescription thing adverse possession.
4 equirable defenses against covenant
Other equitable defenses: is not observing covenant
1. Acquiescent, abandonment or unclean hands, has the beneficially tolorated the previous violation (acquiescing), violated the covenant yourself (unclean hands) or tolerated violation by other (abandonment).
2. Estoppel: has the owner of the servient state changed position in reliacne on something the dominant estate owner said
3. Laches: has the covenant been ignored or breach for a substantial amount of time
4. Marketable title acts: states might create a system of policy that does away with covenants unless re-recorded (MA registered v. recorded land
ES is more easily proved because?
it does not reuqired privity and the notice requirement is east to hit.
if if an element of a covenant or ES is not satisfied, is it still binding
yes, against the original promisor and promisee
running with the land, a rebuttable presumption
the following create a rebuttable presumption:
1. this covenant runs with the land
2. heirs and assigns
3. the covenant is appurtentant to the land.
NOTE: if touching is physical, this is a strong presumption of running with land, if second property is far away, this is a presumption of gross.
touch and concern focuses on the reasonablness of the intent.
- What are the values balancing to both parties
o Keeping it fair to both parties
o The court looked to - Testimony
- The advertisement
- The nature of the hilltop
- The nature of ambiguous testimony,.
- what is the policy
We need to find the original intent
Disruption of expectations and the court is trying to balance those expectations. - How does the court determine that there is a general scheme
o You could see this either way! - This development was different
This was over a long period of time, it is not the same thing we would think about in a development
Does a purchaser think of the common general scheme - The court finds:
- Top of page 584
- Constituted strong evidence however this only attached to the lakefront lots
- How does the court ultimate solve this issue
Bellemeade Co. v. Priddle: Another Kentucky case, Bellemeade, was used to demonstrate that a subdivision can be divided into restricted and unrestricted sections, based on the developers’ intent and marketing practices. In this case, the court held that one section of a subdivision was not part of the restricted area and could be sold for commercial development.
What E did the court use: differently situation and contextualized
o The court determined that the hilltop is substantively different and is not subject to the covenant
What covenant’s BURDEN do not usually touch and concern the land
- The covenant for payment of money generally does not. for future services
- A covenant that names a management company who manage properties for specific percentage of rentals
- Kind of an inch providing that a property seller will build a house on a lot, for a price, when the purchaser decides what kind of house they want to build.
- The subsequent owners will not be forced to use the seller as their builder.
- A contract that a seller would deliver water for a fixed price, where the burden property owner can easily dig a well.
- I cannot find it promising to support or oppose the rezoning application that does not touch and concern the land.
what key policies do we want to remember
- efficient use of the land
* Courts dislike covenants that are open-ended that can create costly unforeseen or uncertain financial burdens.
* Historically performative covenants were disliked comment courts are still wary of them
* Subsequently on owners don’t have an opportunity to rectify predecessors mistakes.
- the legitimate purpose is to improve and enjoy land\
- continue the residential character
- “convenient instrument” for property owners to advance their common interests
What covenant’s BENEFIT not usually touch and concern the land
vertical privity can run with
trqansfers, sales, gifts and inheritances but not leases
there is one that is effected by the lease
vertical privity minority
Burden: must get entire estate in transfer
Benefit: just need to have possesion of estate.
notice if ES applies to who
t
the burdened party
® Privity replaced with notice: (neponsit)
◊ Actual -told
◊ inquiry - can observe
} Less likely than in easmeetn
} Can be assumed because of common nature
– All houses painted purple
– Very subtle
– Coujld be common feather
– Certain archtectual style
◊ Constructive notice:
} Reasonable search of records
notice of ES, what does the court hate
the court hates, buying a burndened property and trying to get around the covenant
- ratification by participation
ES that is gross
the majority may reach the promisee1 if notice. from original owner.
in minority, original owner cannot reach Pee1
what are the 4 factors to a common scheme
- A common granter that is a developer who sells or expresses an intention to put an entire tract on the market subject to a general plan;
- A subdivision platter map of the entire tract noting the restrictions, filed or recorded at the time of sale of one of the lots;
- an actual development in sale of the lots occurring in accordance with the plate; And
- Substantial uniformity and the restrictions imposed in the deeds to the lots executed by the common owner or developer
