Promises

Question 1

Real Covenant

Answer 1

(1) A promise
(2) “Runs with the land,” the promises must:
a. Touch and concern
b. “Intent” to run with the land
c. Entered and enforced by parties with the appropriate “privity of estate.”

Question 2

Personal K

Answer 2

does not “run with the land” because does not touch and concern

Question 3

“Mutual privity”

England

Answer 3

the original parties had a continuing interest in the same land

(1) possessory estate & associated future interest
(2) Co-tenants

Question 4

Minority American Rule- “Horizontal privity”-

Answer 4

The original parties were grantor and grantee on the deed that contained the promise - you want a conveyance with the other in the same deed

Question 5

Majority American Rule - Vertical privity

Answer 5

(we don’t care how long the chain is as long as one can build chain of title back) the enforcement parties are successors in interest to the original contracting parties – no specific relationship is needed between the original contracting parties

Question 6

Effect of a Conveyance on Real Covenants Rules

Answer 6

Majority: Grantor discharged from the benefit or burden of a real covenant upon conveyance
Minority: Do not discharge the grantor automatically if the grantor was also the original promisor or promisee.

Question 7

Equitable Servitudes

Answer 7

Minority Rule

(1) Technical problem that prevents it form being a real covenant “gap fillers”, but it looks and acts like a real covenant
(2) Enforce promises when insufficient privity-
a. The acquiring party must know about the promise for this to occur
(3) Only in equity courts, no damages (the law won’t recognize the obligation)
(4) Collateral estoppel prevents you from filing the same lawsuit twice (if we don’t have enough to enforce privity we will probably go toward equitable servitude)

Question 8

Implied reciprocal Negative Easements

Answer 8

Minority

(1) Enforcement of a restrictive covenant that is not included in the deed!
(2) The unrestricted lot must:
a. have originated from a common owner as the restricted lots
b. AND, purchased with actual or constructive knowledge of the restriction

Question 9

Constitutional and Public Policy Limitations on Real Covenants

Answer 9

(1) Promisor’s value goes down, then it touches and concerns – if the promisee’s goes up then it touches and concerns (BIGELOW)
(2) Restricting the number of people who can buy it drops property value
a. If a real covenant violates a provision of the U.S. constitution, it cannot be enforced
b. Likewise, if the covenant violates state constitutional or statutory law, it will not be enforced
c. Some states have extended the exclusion of enforcement to include covenants that violate “public policy”

Question 10

Ambigious Construction of a real covenant

Answer 10

1) implement intent

2) restraints on alienation narrowly construed

Question 11

Amendment Rights

Answer 11

(1) Mechanism: committee or vote of a majority

(2) unilateral rights to amend real covenants

Question 12

Termination of Real Covenants

Answer 12

1. Express termination
2. Waiver
3. Abandonment
4. Changing use doctrine
5. No prescription or merger

Question 13

Express Termination of Covenants

Answer 13

Majority:

(1) Expire because they are defined to last a set period when they are created
(2) Voluntarily release: the convenantees discharges the covenant by conveyance to the covenantor

Minority: require some covenants to terminate after a set period of time. (MA)

Question 14

Termination by Waiver

Answer 14

the covenantee fails to enforce the covenant; Enforcement is possible after improper use terminates

Question 15

Termination by abandonment

Answer 15

occurs when the covenant is not enforced- a waiver- with the objective intent never to enforce the clause again; the covenant can never be enforced again in distinction to a waiver where enforcement is possible after the improper use terminates

Question 16

Changing Use Doctrine

Answer 16

Real Covenants & Equitable Servitudes

(1) Use around has changed, enforcing the restriction no longer can be justified
(2) Change must be inside of the development

Question 17

Limits changing use doctrine

Answer 17

(1) Not terminate the real covenant – it makes it unenforceable in equity
(2) Not allow the court to rewrite the restrictive covenant – either it is enforced as written, or it is not enforced at all.