Negative Easements; Real Covenants and Equitable Servitudes

Question 1

Function of Easements

Answer 1

give owner right of use

Question 2

Real Covenants

Answer 2

a promise concerning the use of land

Question 3

Mere Precatory Language

Answer 3

not binding effect at all

Question 4

Real Covenant

Answer 4

runs with the land at law and BINDS subsequent purchasers

money damages possible

Question 5

Elements for Real Covenants

Answer 5

1. Writing
2. Intent
3. Touch and Concern
4. Notice (if constructive –> legal blinders)
5. Privity of estate
6. privity between go covenanting party and a successor in interest

Question 6

Notice rules

Answer 6

If constructive then legal blinders

Question 7

Privity of Estate
Massachusetts Rule

Answer 7

for burden to run
requires mutual privity between og covenanting parties.

Question 8

Privity of Estate
Traditional Rule

Answer 8

for burden to run
requires either mutual or horizontal privity

Question 9

Privity of Estate
Modern Rule

Answer 9

for burden to run
no privity required between original covenanting parties

Question 10

Privity of Estate
for benefit to run

Answer 10

no privity required between og parties

Question 11

Privity between OG covenanting party and a successor in interest

Traditional and Mass Rule

Answer 11

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

Question 12

Privity between OG covenanting party and a successor in interest

Modern Approach

Answer 12

For either benefit or burden to run, a successor must only have PVP with an original covenanting party

Question 13

Equitable Servitudes Remedy

Answer 13

typically injunction

Question 14

Equitable Servitudes does what

Answer 14

runs with the land at equity

Question 15

Equitable Servitudes function like

Answer 15

a novation

Question 16

Construction of covenants:

Answer 16

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.

2. Two Approaches:
   a. Majority: intent
   b. Minority: strict construction

Question 17

Elements required for Equitable Servitudes to determine if the benefit or burden will run

Answer 17

1. Writing
2. Intent
3. Touch and Concern
4. Notice
5. Privity of estate
6. privity between go covenanting party and a successor in interest

Question 18

Equitable Servitude Writing

Answer 18

a. Majority: imply negative restrictions from a general plan.
b. Minority: strictly construes writing requirement

Question 19

Equitable Servitude
Touch and Concern

Answer 19

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

Question 20

Equitable Servitude
Notice

Answer 20

Majority - recording gives constructive notice - legal blinders rule

Minority - strictly requires writing somewhere to create easement
- legal blinders

Question 21

Equitable Servitudes
Privity

Answer 21

only OCPs and successors could sue (og covenanting parties) Who has standing to enforce.
a. Exceptions:
i. Third party beneficiaries
ii. Agents

Question 22

Discriminatory Covenants

Answer 22

State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment

Question 23

If no modification provision

Answer 23

then every single person would have to agree

Question 24

Typical express provisions put in the covenant at the creation

Answer 24

Modification of the scheme by agreement of less than all owners e.g., a majority, plurality, 2/3rds

Question 25

Modification for specific lots by agreement between the sub dividers and low owners. to ask

Answer 25

do you trust the sub-dividers judgment

Question 26

Deferral of certain decisions to an architectural review committee

Answer 26

1. Decisions must be reasonable
2. In good faith
3. And not arbitrary

Question 27

Termination of Covenants

Answer 27

1. Expiration
2. Legislation
3. Release
4. Merger
5. Recording act
6. Abandonment waiver or estoppel
7. Changed conditions or circumstance such that enforcement would be inequitable

Question 28

Construction of Covenants:
ALWAYS APPLY FIRST

Answer 28

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.
2. Two Approaches:
   a. Majority: intent
   b. Minority: strict construction