III. RESTRICTIVE COVENANTS Flashcards
general
Give the right to restrict someone else’s use of their land. While no possession or use is involved, this is property interest. Because this is an property interest, both real covenants and equitable servitudes are required to be in
- Covenants at law or Real Covenants (when enforcing at law)
If plaintiff wants damages - Equitable servitudes (when enforcing in equity)
If plaintiff wants an injunction
A. COVENANTS RUNNING WITH THE LAND AT LAW
1. Establishing the Burden of a Real Covenant
For the burden of a real covenant to be enforceable against a successor covenantor there must be:
- intent that it run with the land.
- notice of the covenant (actual, record or inquiry) at the time an interest in the burdened land is acquired.
- The covenant must touch&concern the land, i.e., it must make the land more valuable or more useful and must not be a personal promise. It must affect the relationship of the parties as landowners.
- Horizontal privity, which always refers to the original parties to the covenant. This element requires that at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant.
no: Jerry and Newman already owned their lots and then agreed on the covenant - Vertical privity refers to those who subsequently acquire property subject to the covenant (the successor-in- interest) and the original party from whom they got the property. There must be a transfer of the original covenantor’s entire estate to the successor.
A. COVENANTS RUNNING WITH THE LAND AT LAW
2. Establishing the Benefit of a Real Covenant
- intent that it run with the land.
- The covenant must touch&concern the land
- Vertical privity refers to those who subsequently acquire property subject to the covenant (the successor-in- interest) and the original party from whom they got the property. For the benefit to run, the owner of any succeeding possessory estate can enforce the benefit at law, it does not have to be the entire estate as with vertical privity for the burden.
B. EQUITABLE SERVITUDES
burden benefit?
For the burden of an equitable to be enforceable against a successor covenantor there must be:
- intent that it run with the land.
- notice of the covenant (actual, record or inquiry) at the time an interest in the burdened land is acquired.
- The covenant must touch&concern the land
benefit:
- intent that it run with the land.
- The covenant must touch&concern the land
***no privity required
C. EQUITABLE SERVITUDES IN SUBDIVISIONS
- intent to create a servitude on all the land in the subdivision.
This is found in the common building plan. The plan may be found in a subdivision map or by deeds from a common grantor. The facts in the Hypo show the restrictions in all of the deeds except for five. The subdivision map also serves as evidence of the common plan of development. If established the benefit of the restriction attaches to all owners in the subdivision. - notice. Three ways for this to be established:
Actual notice, constructive record notice (where the restriction is in the direct chain of title); or inquiry notice (meaning that you are held to know anything that a reasonable investigation might have revealed).
D. EQUITABLE DEFENSES TO ENFORCEMENT (Only for equitable servitudes):
1, unclean hands; defense, e.g., P did same thing as D.
- acquiesce, e.g., P let neighbor on other side do same thing.
- laches, e.g., P sat by while D built the office building and only now, after D has finished it, does P complain.
- estoppel, e.g., P said earlier she did not mind if D put up an office building.
E. TERMINATION
A covenant can always be terminated by release or by unity of ownership, but on exam look for termination by change circumstances
***Watch Out! It’s all or nothing. (unless all subdivision got affected by the polluted area)
