Negative Easements; Real Covenants and Equitable Servitudes Flashcards
Function of Easements
give owner right of use
Real Covenants
a promise concerning the use of land
Mere Precatory Language
not binding effect at all
Real Covenant
runs with the land at law and BINDS subsequent purchasers
money damages possible
Elements for Real Covenants
- Writing
- Intent
- Touch and Concern
- Notice (if constructive –> legal blinders)
- Privity of estate
- privity between go covenanting party and a successor in interest
Notice rules
If constructive then legal blinders
Privity of Estate
Massachusetts Rule
for burden to run
requires mutual privity between og covenanting parties.
Privity of Estate
Traditional Rule
for burden to run
requires either mutual or horizontal privity
Privity of Estate
Modern Rule
for burden to run
no privity required between original covenanting parties
Privity of Estate
for benefit to run
no privity required between og parties
Privity between OG covenanting party and a successor in interest
Traditional and Mass Rule
Traditional and Massachusetts:
For burden – successor must take an og covenanting party’s full interest by deed, will, or intestacy
Adverse possession is not privity bc it is taken
For benefit to run: successor must take some interest from an og party
Privity between OG covenanting party and a successor in interest
Modern Approach
For either benefit or burden to run, a successor must only have PVP with an original covenanting party
Equitable Servitudes Remedy
typically injunction
Equitable Servitudes does what
runs with the land at equity
Equitable Servitudes function like
a novation
Construction of covenants:
1.Does the behavior violate the covenant at all? You ask this question first when trying to analyze if a benefit or burden will run.
- Two Approaches:
a. Majority: intent
b. Minority: strict construction
Elements required for Equitable Servitudes to determine if the benefit or burden will run
- Writing
- Intent
- Touch and Concern
- Notice
- Privity of estate
- privity between go covenanting party and a successor in interest
Equitable Servitude Writing
a. Majority: imply negative restrictions from a general plan.
b. Minority: strictly construes writing requirement
Equitable Servitude
Touch and Concern
a. Traditional Approach –
i. Benefit in land + burden in gross = burden runs
ii. Burden in land + benefit (personal-in gross = burden does not run)
iii. Burden must touch and concern both the burdened and benefitted side
b. Restatement Approach – eliminates touch and concern requirement replacing with a default rule that a covenant is valid
Equitable Servitude
Notice
Majority - recording gives constructive notice - legal blinders rule
Minority - strictly requires writing somewhere to create easement
- legal blinders
Equitable Servitudes
Privity
only OCPs and successors could sue (og covenanting parties) Who has standing to enforce.
a. Exceptions:
i. Third party beneficiaries
ii. Agents
Discriminatory Covenants
State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment
If no modification provision
then every single person would have to agree
Typical express provisions put in the covenant at the creation
Modification of the scheme by agreement of less than all owners e.g., a majority, plurality, 2/3rds
