Equitable Servitudes Flashcards
Define equitable servitude.
A promise that equity will enforce against successors.
How are equitable servitudes enforced?
Injunctive relief.
To create an equitable servitude that will bind successors, we use which pneumonic?
Can I get a WITNES??
What elements are needed to establish an equitable servitude that will bind successors?
Writing (generally, original promise was written)
Intent (parties intended that the promise would bind successors)
Touch and concern (promise affects parties as landowners)
Notice (successors of burdened land had notice of the ES)
ES stands for equitable servitude.
Notably, what is NOT required to bind successors in the equitable servitude context?
Privity of any kind
A subdivides her land into 50 lots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by a deed containing no such covenant.
B now seeks to build a convenience store on his lot. What doctrine must apply to enjoin him from doing so?
The General or Common Scheme Doctrine
A subdivides her land into 50 lots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by a deed containing no such covenant.
B now seeks to build a convenience store on his lot. What must be true to enjoin B from doing so?
When the sale began, A had a general scheme/plan of residential development, which included B’s lot.
B had notice of the promise contained in the prior deeds.
What are the two elements of the general or common scheme doctrine of equitable servitudes in the subdivision context?
When the sale began, subdivider had a general scheme/plan of residential development, which included defendant’s lot.
Defendant had notice of the promise contained in the prior deeds.
What are the three types of notice potentially imputed to the defendant under he general or common scheme doctrine of equitable servitudes in the subdivision context?
Pneumonic?
AIR
Actual notice (D knew of the common restriction)
Inquiry notice (the neighborhood conforms to the common restriction, so D should have realized)
Record notice (the form of the notice sometimes imputed to buyers on the basis of the publicly recorded documents0
Which form of notice do courts differ as to applicability? Which side is considered “better”?
Record Notice
The “better” view is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor.
What is the primary equitable defense to enforcement of an equitable servitude?
Changed condition
What must a defendant show when pleading the “changed condition” defense to enforcement of an ES?
What is not enough?
Must show that the changed circumstances are SO PERVASIVE that the entire area has changed
Mere pockets of change is never enough
The general or common scheme doctrine will apply to which type of servitude?
Implied Equitable Servitude
