Equitable Servitude

Question 1

An equitable servitude

Answer 1

is a promise that equity will enforce against
successors of the burdened land regardless of whether it runs
with the land at law, unless the successor is a bona fide purchaser
(meaning, a subsequent purchaser for value without notice of the
covenant).
The equitable servitude

Question 2

Creation

Answer 2

as with real covenants, equitable servitudes are created by
promises contained in a writing that satisfies the Statute of Frauds.
To create an equitable servitude that will bind successors, remember
W I T N E S:

Question 3

The Implied Equitable Servitude—The General or Common Scheme Doctrine

Answer 3

Under the common scheme doctrine, the court will imply a reciprocal
negative servitude to hold the unrestricted lot holder to the promise.
(Reciprocal negative servitude means an implied equitable servitude).
Thus, if a developer

Question 4

The two elements of the general or common scheme doctrine:

Answer 4

• When the sales began, the subdivider (A) had a general
  scheme of residential development which included the
  defendant’s lot (the scheme may be evidenced by: a recorded
  plat, a general pattern of restrictions, or oral representations
  to early buyers); and
• The defendant lot-holder (B) had notice of the

Question 5

Equitable Defenses to Enforcement

Answer 5

A court will not enforce an equitable servitude if:
a. The neighborhood conditions have changed so significantly that enforcement would be inequitable. The changed circumstances alleged by the party seeking release from the terms of
an equitable servitude must be so pervasive that the entire area
or subdivision has changed.
b. The person seeking enforcement is violating a similar restriction
on his own land (unclean hands);
b. A benefited party acquiesced in a violation of the servitude by a
burdened party;
c. A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel); or
d. The benefited party fails to bring suit against the violator within a reasonable time (laches).