Disputes About the Use of Land - Covenants Running with the Land

Question 1

What is the effect of real covenants & equitable servitudes?

Answer 1

Restrict the right to use land or impose obligations on the owners of land

Question 2

What are the required elements for the benefit and burden of a real covenant to run with the land ?

Answer 2

1. Writing - must comply w/ SOF
2. Intent - Parties intend for rights/duties to run w/ the land
3. Touch & Concern
4. Notice - Burden only
5. Privity

• Vertical Privity AND
• Horizontal Privity (Burden Only )
• Modern Trend - No Priv. req.

Question 3

When does a Real Covenant Touch & Concern the land ?

Answer 3

The pers. seeking enforcement must establish that the benefit or burden affects both the promisee & promisor as owners of land NOT just as individuals

Question 4

Touch & Concern - Negative Covenants

Answer 4

Neg. Cov. run with the land if they restrict the owner’s use & enjoyment of the land

Question 5

Touch & Concern - Affirmative Covenants

Answer 5

Affirm. cov. run with the land if they require owner to do something related to use and enjoyment of the land

Question 6

How is the intent element satisfied for a covenant to run with the land ?

Answer 6

It must be intended that the restriction bind future landowners

• By words OR
• Can be implied from the totality of the document & circ.

Question 7

When is the notice element satisfied for a covenant to run with the land?

Answer 7

Burden Only

• Servient Side Only
• Subseq. purchaser must take with notice of the restriction
  
  • Actual OR
  • constructive

Question 8

When is the privity element satisfied for a covenant to run with the land ?

Answer 8

For a cov. to be enforceable against a subsequent owner of the land

• For Burden to Run - Need:
  
  • Horizontal Privity AND
  • Verticla Privity
• For Benefit to Run - Need:
  
  • Just Vertical Privity

Question 9

What is Horizontal Privity ?

Answer 9

Original parties to the covenant must have privity of estate at the time the agreement creating the cov. is entered into

• Burden ONLY
• When estate & covenant is in the same instrument

Question 10

What is vertical privity ?

Answer 10

The relationship b/w the orig. party and the successor to the property interest

• Burden runs if the successor holds an estate of the same duration as the orig. party
• Benefit runs if the successor holds some portion of the prop. int. held by orig. party

Question 11

What is the remedy for breach of a real covenant?

Answer 11

As an action of law, remedy is Monetary damages

Question 12

What is an equitable servitude?

Answer 12

Agreements about land us that are enforced at equity by injunction.

• Requirements are not as stringent as those for enforcement of real covenant

Question 13

What are the elements of an equitable servitude?

Answer 13

1. Writing - subj. to SOF
2. Intent for restriction to be enforceable by & against successors
3. Servitude must touch & concern the land AND
4. The person against whom the servitude is to be enforced must have notice of the servitude

• Actual, record, inquiry

Question 14

What is an implied reciprocal servitude?

Answer 14

Arise in planned subdivisions, to enforce:

1. Intent to create a servitude on all plots (common scheme)
2. Servitude must be negative (promise to refrain from doing somthing) AND
3. Party against whom enforcement is sought must have notice (actual, record, inquiry)

Question 15

What is the remedy for breach of an equitable servitude or implied reciprocal servitude?

Answer 15

An injunction

Question 16

How can a covenant or equitable servitude be terminated?

Answer 16

1. Written release
2. merger of title
3. abandonment
4. estoppel
5. condemnation OR
6. sale to BFP

Question 17

Equitable Servitudes Defense

Answer 17

Changed Circumstances

• If restriction on prop. no longer makes sense to enforce b/c of drasticchanges in the surrounding area since restriction was first contemplated
• Restriction wont be enforced

Question 18

Transfer of Covenants & Equitable Servitudes

Answer 18

The real prop. rights & oblig. are transferred along with the real prop. itself to subsequent owner when all requirements are met

Question 19

Common Interest Ownership Communities

Answer 19

Real-estate development where indiv. owned lots/units are burdened by a cov. that imposes an oblig.to pay dues to an assoc. that:

1. provides services or facilities to the com. prop. or to indiv. owned prop. OR
2. Enforces other covenants or easements that burden the prop. in the development or neighborhood

Dues must be required regardless of use of the services of facilities or withdrawal from the assoc.

Question 20

Types of common interest communities

Answer 20

1. Property owners assoc.
2. Condominiums
3. Cooperatives