Pg 42 Flashcards
What is an implied reciprocal servitude?
When an earlier grantee covenanted with the common owner to burden the retained land and bind later owners that have notice of it.
What is the example of an implied reciprocal servitude?
If a developer sells lot 1 to A who covenants to restrict it to a single family dwelling, then sells lot 2 to B with no restriction. A can limit B to a single-family dwelling by saying when he covenanted with the developer, the developer impliedly covenanted that its retained land would also be restricted. The reciprocal burden that attached to Lot 2 ran with it to B if he took with notice of it
What is a necessary feature of an implied reciprocal servitude?
A common plan
A common plan is essential to recognize what two things?
Third-party beneficiary status or an implied reciprocal servitude
What kind of things does a common plan do?
– Gives record notice through a recorded plat that shows uniform restrictions
– gives inquiry notice through the uniform structures or landscapes that show uniformity
What is the third-party beneficiary theory?
Some jurisdictions say that a prior grantee cannot enforce a covenant against a later one if there is no common plan, but each lot in a common plan is impliedly benefitted from all the servitudes it creates
How does an HOA work?
A developer creates the HOA and grants power to enforce common restrictions. He then usually gives a parcel of land to the HOA, such as a clubhouse, and states in each deed for the individual lots that they are subject to restrictions for the HOA parcel’s benefit and each individual parcel’s benefit. Then the benefit of the restrictions run with the homeowner association’s parcel. The homeowner association also has the power without the parcel of land acting as the original covenantee’s agent. Once the developer sells all the land in the subdivision, he has no more power there
What is the effect of an omission on later deeds?
If a restriction is recorded, then future buyers are bound or benefitted by it even if the deed title didn’t mention it because there was a recorded document and that gives constructive notice
Do the same things that terminate a covenant also terminate an equitable servitude?
Yes, plus there are three extras that only apply to an equitable servitude
What are the three extra termination methods that apply to only an equitable servitude and not a covenant?
– Laches
– unclean hands
– acquiescence
How can laches terminate an equitable servitude?
This denies relief when the plaintiff waited so long to seek enforcement that there is detriment to the burdened property owner
How can acquiescence terminate an equitable servitude?
There is no relief given when the owner of the benefitted land allows too many other lot owners to breach their covenants
What is the most common remedy for breach of an equitable servitude?
Injunctions. Money damages are rarely given for these (usually for covenants)
What is freedom from physical intrusion?
Property law involves a right to exclude others, although this is not absolute because people can enter with permission, by excuse or privilege, or even against the owner’s will
What are natural rights in relation to property?
– riparian rights
– lateral or subjacent support
– freedom from nuisances
