Equitable Servitudes Flashcards
Equitable servitudes will “run with the land”
Equitable servitudes will “run with the land” and bind successors if
a. Writing is typically required.
b. Intent that the promise apply to successors to the property.
c. Must “touch and concern” the land.
1. Dominant parcel: The promise benefits the dominant parcel by increasing the use or enjoyment of the property.
2. Servient parcel: The promise restricts the use of the servient parcel in some way thus decreasing the use or enjoyment, or requires the servient parcel to do something.
d. Notice is required and can be actual, constructive (record) or inquiry notice.
e. No horizontal or vertical privity is required. (E.g.: Neighbors can have an enforceable equitable servitude.)
Implied reciprocal servitude (general or common scheme doctrine)
Court can imply a reciprocal equitable servitude if the original owner intended a “common plan or scheme” and the purchaser has notice of the scheme. The remedy for a breach is an injunction in equity.
a. The common plan or scheme can be evidenced by a recorded plat, or a general pattern of restrictions, or an oral representation to early buyers (e.g., a new housing development where a contract with a company regarding the provision of security services has been recorded).
b. Notice is required and can be actual, constructive (record), or inquiry notice. Inquiry notice can be provided by a visual inspection of the neighborhood that gives the appearance of conforming to certain standards.
c. No SOF writing is required.
Termination or modification of equitable servitudes
Termination or modification of equitable servitudes is allowed in the following circumstances:
a. Agreement of all parties in a sufficient writing
b. abandonment action: The equitable servitude holder demonstrates by physical action the intent to abandon the servitude. Words alone or mere nonuse will not be sufficient to constitute abandonment.
c. Changed conditions: Conditions that have changed so significantly that the purpose of the equitable servitude is impossible to accomplish.
Equitable servitudes
Equitable servitudes (also called restrictive covenants ) are restrictions on how land may be used. Equitable servitudes are similar to real covenants, but have no privity requirements. (E.g.: Property may be used for residential purposes only, or painted a particular shade of beige.) The remedy for breach of an equitable servitude is an injunction in equity.
