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
What is required under the element for “form of the covenant“ for an equitable servitude to run with the land?
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
What are the majority and minority rules regarding whether or not SOF applies to equitable servitudes?
– Majority: must comply with SOF
– minority: SOF does not apply because equitable restrictions are contract rights, not interests in land
What are some ways you can take an equitable servitude covenant out of SOF?
With estoppel or part performance
What is involved in the intent element of an equitable servitude?
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
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?
Bound by the equitable servitude. This includes tenants and adverse possessors
What is involved in the notice element of an equitable servitude?
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.
How does constructive notice work as a notice element of an equitable servitude?
You are charged with notice if the servitude was recorded
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?
– 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
What is involved in inquiry notice as an element of an equitable servitude?
Based on the appearance of the area the buyer can be charged with knowledge of the servitude