Pg 41 Flashcards
What is an equitable servitude?
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
Privity requirements often stop neighbours from making binding agreements, so what is an alternative to enforcement of a covenant at law?
Enforcement in equity because no privity is required
What is it that becomes burdened by a servitude?
The land itself, not the estate. A servitude sinks its tentacles into the soil
What is the major difference between an equitable servitude and a real covenant?
Servitudes do not need privity
Would it be possible for an adverse possessor to enforce an equitable servitude’s benefits after his rights mature?
Yes, because privity is not required for equitable servitudes
Some jurisdictions still require what kind of privity for an equitable servitude?
Vertical privity for the burden of the servitude to run. But that is not very likely today
What are the elements that have to be discussed in order for an equitable servitude to run with the land?
– Form of covenant – intent – notice – touch and concern – no privity needed
What kind of remedy is often given for an equitable servitude?
Injunctions
Does SOF apply to equitable servitudes?
Yes, because it involves an interest in land
What is the one way you can make an equitable servitude without having a writing?
Implied reciprocal servitude where the courts consider society‘s values
What are some equitable defences that could apply to stop an injunction given by the court for an equitable servitude?
– court discretion – unclean hands – inadequate remedy at law - balance of equities – comparative hardship – latches – estoppel
What does it mean for a defence to an injunction for an equitable servitude that allows for the “court’s discretion“?
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.
How can unclean hands be a defence to an injunction for an equitable servitude?
If the claimant is culpable or blameworthy for creating harm that he wants relief from, it will be denied
How is comparative hardship a defence to getting an injunction for an equitable servitude?
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
If the elements for an equitable servitude are met, what happens?
The servitude runs with the land and is enforcible against successors