Pg 41

Question 1

What is an equitable servitude?

Answer 1

Covenants that run in equity. Restriction on the use of land that can be enforced in equity against anyone who takes an interest in property that is subject to the restriction, provided that it touches and concerns, there is intent, and notice

Question 2

Privity requirements often stop neighbours from making binding agreements, so what is an alternative to enforcement of a covenant at law?

Answer 2

Enforcement in equity because no privity is required

Question 3

What is it that becomes burdened by a servitude?

Answer 3

The land itself, not the estate. A servitude sinks its tentacles into the soil

Question 4

What is the major difference between an equitable servitude and a real covenant?

Answer 4

Servitudes do not need privity

Question 5

Would it be possible for an adverse possessor to enforce an equitable servitude’s benefits after his rights mature?

Answer 5

Yes, because privity is not required for equitable servitudes

Question 6

Some jurisdictions still require what kind of privity for an equitable servitude?

Answer 6

Vertical privity for the burden of the servitude to run. But that is not very likely today

Question 7

What are the elements that have to be discussed in order for an equitable servitude to run with the land?

Answer 7

– Form of covenant
– intent
– notice
– touch and concern
– no privity needed

Question 8

What kind of remedy is often given for an equitable servitude?

Answer 8

Injunctions

Question 9

Does SOF apply to equitable servitudes?

Answer 9

Yes, because it involves an interest in land

Question 10

What is the one way you can make an equitable servitude without having a writing?

Answer 10

Implied reciprocal servitude where the courts consider society‘s values

Question 11

What are some equitable defences that could apply to stop an injunction given by the court for an equitable servitude?

Answer 11

– court discretion
– unclean hands
– inadequate remedy at law
- balance of equities
– comparative hardship
– latches
– estoppel

Question 12

What does it mean for a defence to an injunction for an equitable servitude that allows for the “court’s discretion“?

Answer 12

The person has satisfied the technical requirements for equitable relief, but a court thinks it would be inappropriate to give this due to something like undue hardship, burden outweighing the benefit, improper conduct by someone seeking relief, etc.

Question 13

How can unclean hands be a defence to an injunction for an equitable servitude?

Answer 13

If the claimant is culpable or blameworthy for creating harm that he wants relief from, it will be denied

Question 14

How is comparative hardship a defence to getting an injunction for an equitable servitude?

Answer 14

If the person suffers great hardship and inconvenience but has only caused negligible harm to his neighbors, courts will usually decline an injunction if the hardship would be greatly disproportionate to the harm that is being remedied. This only applies if it was innocent or mistaken

Question 15

If the elements for an equitable servitude are met, what happens?

Answer 15

The servitude runs with the land and is enforcible against successors

Question 16

What is required under the element for “form of the covenant“ for an equitable servitude to run with the land?

Answer 16

The covenant must be binding between the covenantor and the covenantee and the language must show that the parties intended to burden the land, not to perform a personal act

Question 17

What are the majority and minority rules regarding whether or not SOF applies to equitable servitudes?

Answer 17

– Majority: must comply with SOF

– minority: SOF does not apply because equitable restrictions are contract rights, not interests in land

Question 18

What are some ways you can take an equitable servitude covenant out of SOF?

Answer 18

With estoppel or part performance

Question 19

What is involved in the intent element of an equitable servitude?

Answer 19

There must be intent for the covenant to be enforcible against successors in interest. The parties must have a specific intent that the covenant will run with the land to benefit future owners of the dominant estate and burden the future owners of the servient estate

– common-law: the original parties must expressly state this intent through words like “heirs and assigns.” Needs explicit proof of intent
– modernly: if the restriction touches and concerns both estates, that is enough to infer the original parties had the intent to make the restriction run with the land

Question 20

Equitable restrictions run with the burdened land, so the land itself is bound by them. This means that anyone that succeeds as a possessor is what?

Answer 20

Bound by the equitable servitude. This includes tenants and adverse possessors

Question 21

What is involved in the notice element of an equitable servitude?

Answer 21

There must be a notice to the subsequent purchaser of the restriction before he acquired the interest. Can be actual, constructive notice from the recording acts, inquiry notice, etc.

Question 22

How does constructive notice work as a notice element of an equitable servitude?

Answer 22

You are charged with notice if the servitude was recorded

Question 23

What is the split in authority regarding whether or not notice has happened for an equitable servitude when the recording was outside the chain of title?

Answer 23

– one view: people are liable to search the index and discover the deed
- other view: it is an intolerable burden to make the party examine deeds outside the chain, so that is not required

Question 24

What is involved in inquiry notice as an element of an equitable servitude?

Answer 24

Based on the appearance of the area the buyer can be charged with knowledge of the servitude

Question 25

Essentially the notice element of an equitable servitude binds any successor that is not what?

Answer 25

A BFP

Question 26

What is involved in the element of “touch and concern” regarding equitable servitudes?

Answer 26

The burden of the restriction must “touch and concern“ the burdened/servient parcel and must benefit the dominant/benefited parcel in order to enforce the equitable servitude. This means that the restriction must diminish the use and enjoyment of the servient property. Courts do not usually require that the benefit touch and concern the land for either of them to run, but if the burden doesn’t touch and concern the land, it does not run

Question 27

If you covenant with your neighbour not to use your land to compete with his, would that be considered to meet the element of “touch and concern“ for an equitable servitude?

Answer 27

Yes, because even though the benefit does not touch him concerning the land, the burden does, so successors are bound

Question 28

Is privity needed as an element of an equitable servitude?

Answer 28

No. The original parties do not have to be in privity for the burden to be enforcible in equity against later owners, and successors do not have to acquire the entire estate. This means that even an adverse possessor can be one against whom someone else can enforce a restriction in equity

Question 29

Subdivision developers often insert use restrictions in deeds to the lots. Once the developer sells all of the lots, can he enforce those restrictions?

Answer 29

Generally no, but the lot owners can enforce those restrictions usually through their homeowner’s association

Question 30

If an earlier grantee covenants to restrict his lot, can a later grantee from the same grantor enforce the first person’s covenant?

Answer 30

Yes, because its benefit touched and concerned the grantor’s retained land and ran with the conveyed lot to the later purchaser

Question 31

If a developer conveys Lot 1 to A with a single-family dwelling covenant, then Lot 2 to B, can B enforce that covenant against A?

Answer 31

Yes because A’s covenant benefitted the developer’s other land and that included Lot 2, so the covenant ran with lot to 2 to B

Question 32

Is it possible for an earlier grantee to enforce a later grantee’s covenants for an equitable servitude that involves the same common owner?

Answer 32

Yes. If a developer covenants with an earlier grantee to restrict all retained property for his benefit, that burdens all of his retained land and binds later grantees. Although it does not apply to lots that are not in the subdivision when the covenant is made.

I.e.: developer conveys lot 1 to A with a single-family dwelling covenant, then conveys lot 2 to B. A can enjoin B from nonresidential use if he took with notice of the covenant and lot 2 was part of the subdivision at the time of the covenant

Question 33

Is it possible under an equitable servitude to enforce a later grantee’s covenant to the common owner as a third-party beneficiary?

Answer 33

A prior grantee can enforce a later grantee’s covenant to the common owner if it was meant to benefit the prior grantee as a third-party beneficiary.

Ie: developer sells lot 1 to A, then lot two to B who covenants for the benefit of all the lots to use it as a single-family dwelling only. A can enforce this covenant as a third-party beneficiary as long as he can show he was intended to be a third-party beneficiary through adequate extrinsic evidence (such as witnesses saying that the developer told B it was meant to benefit all other lots and B agreed)