Land Use Restrictions: Real Covenants & Equitable Servitudes

Question 1

Real Covenants: Covenants and Servitudes distinguished

Answer 1

Real covenant - generally a promise to perform an act or undertake a duty
- Burden usually restricting land use
- Enforceable by damages
- Can benefit a person instead of land
- Intent to bind successor (same for ES)

Equitable servitude - also generally promise regarding land
- Enforceable by injunction

To distinguish; look for the specific requirements of each

Question 2

Real Covenants: Real Covenant: Traditional Requirements (6 Elements) for Burden Running

Answer 2

1. SOF
2. Intent to bind successors
   – Express language & circumstances/nature;
   – Intent presumed if restriction on use/enjoyment of land
3. “touch and concern” land
   – Negative covenant restricting land usually qualify; Most $ payments closely tied to land occupancy (taxes, HOA dues, etc.) qualify in modern
   case law; [covenants not to compete are permissible]
4. Successor Notice (recording)
5. Horizontal privity
6. Vertical privity

Question 3

Real Covenants: Horizontal Privity Defined

Answer 3

The presence of a special relationship between the Promisor and Promissee.

For example, two landowners next to each other couldn’t mutually do a covenant forever restricting agriculture, they have to have some actual connection.

Question 4

Real Covenants: Vertical Privity Defined

Answer 4

Special Relationship between the original promisee/promisor and their respective successor;

• Can be as simply as having purchased the property

SLIDE: “– Prevailing approach - transfer of same/lesser
interest required for benefit to run”

Question 5

Real Covenants: Does Benefit Run?
(Promisee’s Successor v. Original Promissor) {4 Elements}

Answer 5

■ Covenant in writing
■ Intent to benefit successor
■ Benefit “touches and concerns” land
■ Vertical privity
■ [other elements not required]

Same Elements as Burden Running Excepting Notice and Horizontal Privity

Question 6

Equitable Servitudes: Equitable Servitudes Defined Broadly

Answer 6

Equitable Servitudes
■ General set of elements similar to real covenants
■ Distinction from Real Covenants
– Requirements easier to meet
– More defenses
– Remedy is injunction (not damages) – KEY
ISSUE for litigants

– [Notice of servitude to successor in interest may
be required under case law, i.e. distinct from
requirements of the recording statutes (Tulk v.
Moxhay)

– Statute of Frauds requirements can also be met
with a “Common Plan”

Question 7

Equitable Servitudes: “Common Plan” Exception to
Statute of Frauds (2 Elements)

Answer 7

■ Common Plan arises with developers who subdivide,
develop, and sell
“common plan” to impose uniform restrictions on a
subdivision, all lots are burdened and benefited by
restrictions even if they don’t appear in the chain of
title to every lot.

(1) [implied promise by developer to impose the same
restriction on all the retained lots]
(2) Implied reciprocal servitudes

Question 8

Equitable Servitudes: Running of Burdens & Benefits (3+1 Elements)

Answer 8

■ Running Benefit (promisee successor)
1. Promise in writing or “common plan”
2. Intent to bind successor
3. “touch and concern” land

■ Running Burden (promisor successor):
Same 3 +
4. notice to successor/Recording statutes (donee issue)

■ Successor of both promisee and promisor?
– Both burden and benefit must run for enforcement to be valid

• Neither require privity

Question 9

Equitable Servitudes: Defenses against a servitude

Answer 9

■ Anti-discrimination protections/racial covenants & other public policies (Shelley v. Kramer)
■ Changed conditions
– “major change in conditions since creation of restriction that its continuation would be of no substantial benefit to dominant estate”

■ Traditional equitable defenses
– Acquiescence (past failure to assert)
– Estoppel (detrimental reasonable reliance)
– Laches (waited too long)
– Relative hardship
– Unclean hands (inconsistent conduct, the “hypocrite”)

■ Release & Expiration
■ Abandonment
■ Merger
■ Eminent Domain
■ Recording System

Question 10

Equitable Servitudes: Common Interest Covenants (HOA) test for invalidating (3 reasons)

Answer 10

1. Arbitrary? 2. Unreasonable? 3. Violates fundamental public policy? (statute or constitution)

Shelly v. Kramer race covenants are invalid under the 14th Amendment

Arbitrary = no rational relation to protection, preservation, purpose of land
Reasonableness is relative to the whole common group, not the individual objecting homeowner