Equitable Servitudes

Question 1

Requirements to Bind a Successor

Answer 1

1) Must be in writing

2) Must have been intended to run with the land

3) Must touch and concern the land

4) Successor must have notice (actual, constructive, or inquiry)

*There is NO privity requirement for an equitable servitude

Remedy for Breach = Injunctive Relief

Question 2

Implied Reciprocal Servitude

Answer 2

A kind of equitable servitude that is implied and need NOT be in writing

Usually comes up in planned communities (eg, condo, subdivision)

How are they created:
- Developer must intend to create a covenant (ie, promise) on ALL plots in the subdivision
- Promises must be reciprocal (ie, benefits and burdens each and every parcel equally)
- Musty be negative rather than positive (ie, must be a restriction on the owner’s use)
- A successor must be on notice of the restriction (at least inquiry notice), and
- Must be a common plan or scheme

Question 3

Changed Circumstances Doctrine

Answer 3

Look for situations where the restriction no longer makes sense due to a drastic change in the surrounding area since the restriction was put in place

Critical Question: does the property subject to the restriction still retain some benefit from the restriction?

Question 4

Common Interest Communities

Answer 4

Real estate development in which individual units/lots are burdened by a covenant to pay dues to an association

The association:
- Services: maintains grounds, provides facilities, etc.
- Enforces the covenants

Three Types:
1) Owners’ Associations: Where property owners belong and pay dues to an association or board

2) Condominiums: Where individual units are owned outright, but common areas are owned collectively as tenants in common

3) Cooperatives: Property is owned by a corporation (made of residents/shareholders) that leases individual units to shareholders (residents)

Governance:
- Declaration: the governing documents that outline the controlling covenants and restrictions, as well as the particulars about the association or board
- Powers: the board has general powers to manage the common property and administer the residents

The association must deal fairly with members of the community

Question 5

Fixtures

Answer 5

Tangible personal property that is attached to real property in a manner that is treated as part of the real property (eg, wall or a bridge; the materials used to make a wall or bridge)

A fee simple owner of property is free to make improvements to the property, including fixtures, subject to governmental land use regulations

Holders of a life estate or tenants are limited by the doctrine of waste.

The buyer of real property is generally entitled to the chaste, unless the seller reserves in the contract the right to keep the chattel.

Life Tenants and Tenants: Presumption is that they can remove fixtures unless doing so would permanently damage the property

Trespassers:
Old Rule = trespassers could never remove any fixtures or improvements that they installed
New Rule = trespassers can remove an improvement tor at least recover the value added to the property, so long as they have acted in good faith