Easements by Estoppel & Implication Part III; Covenants that Run with the Land - April 20 Flashcards
How can covenants that run with the land be enforced in law? (Barros)
Covenants that run with the land can be enforced in law as real covenants and in equity as equitable servitudes. (628)
If subsequent owners of a parcel wants to enforce the promise (covenant that runs with the land) against the subsequent owner of another parcel, what two things need to have happened? (Barros)
First, the burden of the promise must have run with the land to the subsequent owner of parcel A. Second, the benefit of the promise must have run with the land to the subsequent owner of parcel B. (629)
What are the elements of real covenants? (Barros)
(1) The promise must be in writing and satisfy the Statute of Frauds to be enforced as both a real covenant and an equitable servitude.
(2) The parties must intend the promise to run with the land. In other words, the parties must intend subsequent owners of the burdened parcel to be bound by the burden, and subsequent owner of the benefited parcel to be able to enforce the benefit.
(3) The promise must touch and concern the land.
(4) The subsequent owner must have notice of the covenant for the burden to run with the land.
(5) There must be privity for a promise to be enforced in law as a real covenant. (630-31)
What is a helpful mnemonic for real covenants? (Piper)
PINTS
P – PRIVITY of estate
I – INTENT by original contracting parties that covenant attach to land & run to future assignees (Horizontal Privity)
N – CIA NOTICE of Restrictive Covenant
T – Must TOUCH & concern the land
S – Must satisfy the SOF
What is a helpful mnemonic for equitable servitudes? (Piper)
TINS
T – Must TOUCH & concern the land
I – INTENT by original contracting parties that covenant attach to land & run to future
N – CIA NOTICE of Restrictive Covenant
S – Must satisfy the SOF
What does horizontal privity mean? (Barros)
In jurisdictions that impose the horizontal privity requirement, the original promisor and the original promisee must be in privity at the time they made the promise. (631)
What does vertical privity mean? (Barros)
In any voluntary real estate transaction (whether a sale or a gift), the original promisor and the subsequent owner will be in privity of estate because they are on opposite sides of a real estate transaction. (631)
How will the touch and concern element be clearly met? (Barros)
Broadly speaking, the touch and concern element clearly will be met if the promise has to do with the occupancy, use, or enjoyment of the property. (633)
Ex: A promise to only paint a house red.
A promise not to paint a house red.
A promise to only build a brick house.
A promise to build a two-story house.
A promise that the house will be set back 50 feet from the street.
A promise not to have a garden shed on the property.
A promise not to have a satellite dish on the property.
A promise to use the property only for single-family residential use.
A promise to use the property only for a commercial use.
A promise not to allow the grass on the lawn to get taller than six inches.
A promise not to fly a flag outside of the house.
A promise to fly a flag outside of the house.
What is a common interest community? (Barros)
Subdivisions that are governed by a homeowners’ association consistent with a set of recorded covenants. (633)
Generally, is privity required to enforce a promise as an equitable servitude? (Barros)
No. (638)
Does the rule against benefits being held in gross apply to homeowners associations? (Barros)
No. (644)
Who is the original promisee? (E&E)
The original promisee is an original party to the agreement creating the covenant - i.e. one of the contracting parties creating the covenant. (524)
Why can the original promisee enforce the covenant? (E&E)
(assuming another person is bound) Because the benefit is personal to the promisee or because it is appurtenant to the promisee’s property. (524)
Who is the original promisor? (E&E)
The original promisor is an original party to the agreement creating the covenant i.e. one of the contracting parties creating the covenant. (524)
