Pg 37

Question 1

What is the essay approach for covenants?

Answer 1

If yes, go to the next question, if no, discontinue:

• Is there a restriction on the use of land?
  – Is it valid?
  – Is the act or omission prohibited by the covenant?
  – is there a party that has a right to enforce the covenant?
  – Is there a party the covenant can be enforced against?
  – Are there any defences that prohibit enforcing the covenant?
  – What remedies are appropriate here?

Question 2

What is a real covenant?

Answer 2

When you create a servitude on the land that is subject to a covenant for the benefit of another parcel of land, and can be enforced at law or in equity by the owner of the dominant estate against the owner of the servient estate whether the owners are original covenanting parties or successors in interest.

Question 3

Does a real covenant run with the land?

Answer 3

Yes

Question 4

What is an example of a real covenant?

Answer 4

If you promise your neighbour you will water your own plants in your own garden regularly

Question 5

What is the difference between an easement and a real covenant?

Answer 5

– Easements use conveyancing language such as “I grant, I reserve.“
– Real covenants use promissory language such as “I promise, I agree“

Affirmative obligations can only be covenants, while the duty to refrain can be either a negative easement or a covenant

Question 6

Is it possible to acquire a covenant prescriptively?

Answer 6

No

Question 7

What is a defeasible estate?

Answer 7

When the owner has the land subject to a condition and cannot convey the land free of that condition

Question 8

What is an example of a defeasible estate?

Answer 8

You convey land to A if he won’t sell alcohol on the land. If he can sells the land to someone else, it has that same condition

Question 9

What are the elements that are required for a covenant to run with the land?

Answer 9

– Legally enforceable form
– intent to run/bind parties
– touch and concern the land
– notice
– privity of estate

Question 10

What is involved in the element that is required for a covenant to run with the land that is called “legally enforcible form“?

Answer 10

The covenant must be enforcible and must satisfy the SOF.
- Minority view: SOF is not required because running covenants are not interests in land.

Estoppel in part performance can excuse the writing.

Question 11

What is involved in the element called “intent to run/bind parties“ that is a requirement for a covenant to run with the land?

Answer 11

The original parties must have intended the covenant to run with the land at the time of creation. This is determined by the language in the written promise or is inferred from the nature of the premise in the surrounding circumstances such as common schemes of development.

***The original parties must have intended to burden the LAND, not a person

Question 12

Why should you always discuss touch and concern first on an essay when you’re dealing with whether or not a real covenant runs with the land?

Answer 12

Because many jurisdictions assume INTENT (element) if the restriction touches and concerns the land