Private Use Restrictions/Limitations Flashcards
Private use restrictions types (2)
1) Real Covenants
2) Equitable Servitude
Real Covenant - Gral
- Written promise to restrict the use of own property to benefit another
- “Negative easement”
- SPIT req + Notice
- Possible Nuisance claims
Real Covenant - Remedy for breach
Damages
Real Covenant - SPIT reqs
- SOF: SADD (signature only from grantor - bindin to grantee if accepted deed with provision)
- Privity of estate: mutual or successive relationship to the same rights of property
- Intent to bind successors: use of words like “heirs/”assigns”/”successors”
- Touch + Concern Land
Real Covenant - SPIT - Horizontal Privity
- Covenant in land conveyance document, OR property grantor/grantee OR landlord/tenant
- Covenant will not run if its just agreement btwn 2 parties, it needs to be in a property conveyance deed
- Not enough if in separate promise
Real Covenant - SPIT - Vertical Privity
- Vertical: requires successor in interest of the burdened estate takes takes the same identical estate as the original owner
Real Covenant - SPIT - Touch+Concern the Land
- Any effect on land use/value/utility (either beneficial/detrimental) - i.e. req to build fence, repairs, option to purchase, pay periodic fees to homes assoc.
- Negative covenants: always touch the land (detriment test) (i.e. not sell liquor, not block view)
- Beneficial covenants: effect is to enhance/increase use/utility of property.
Real Covenant - SPIT - Touch+Concern the Land - Exception
- Personal covenants: only create personal obligation in owner of land - i.e. take care of someone’s dog.
- Do not touch/concern land
Real Covenant - Notice req
1) Actual
2) Constructive: i.e. covenant in public record
3) Inquiry: reasonable person inspecting neighborhood notices apparent restriction.
Equitable Servitude - gral / what, reqs, privity, use
- Failed covenant (usually lack of privity)
- SITS reqs + Notice (actual/constructive)
- No privity req: able to constrain even those not bound by real covenant - i.e. life estate tenant, adverse possessor
- Possible nuisance claims
- Usually for residential development - “COMMON SCHEME”
Equitable servitude - Remedy
Only equitable - Injunction/Specific Performance
Equitable Servitude - SITS reqs
- SOF: gral rule - exception: negative eq serv- can be implied from common scheme
- Intent to bind successors: use of words like “heirs/”assigns”/”successors”
- Touch + Concern Land
- Successor of covenantor Notice: Actual/Constructive/Inquiry
Reciprocal Negative Servitude
- Can be enforced even w/o SOF - implied from common scheme
use on residential development
Equitable Servitude - Reqs for reciprocal and mutually enforceable (2)
1) Common plan/Scheme: as intent of grantor/developer that burdens/benefits mutually enforceable - with sale of first lot.
2) Notice to purchaser: actual/constructive/inquiry - (justifies no need of record for negative servitude)
Defenses to enforcement of covenants/servitudes (3)
1) Estoppel: statements/actions of benefited party created reliance of burdened party on apparent waiver (mere non use not enough)
2) Unclean Hands: Person engaged in violation of covenant
3) Acquiescence: Benefited owner allowed violations by burdened party - the longer the better
