Promises Flashcards
Real Covenant
(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.”
Personal K
does not “run with the land” because does not touch and concern
“Mutual privity”
England
the original parties had a continuing interest in the same land
(1) possessory estate & associated future interest
(2) Co-tenants
Minority American Rule- “Horizontal privity”-
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
Majority American Rule - Vertical privity
(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
Effect of a Conveyance on Real Covenants Rules
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.
Equitable Servitudes
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)
Implied reciprocal Negative Easements
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
Constitutional and Public Policy Limitations on Real Covenants
(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”
Ambigious Construction of a real covenant
1) implement intent
2) restraints on alienation narrowly construed
Amendment Rights
(1) Mechanism: committee or vote of a majority
(2) unilateral rights to amend real covenants
Termination of Real Covenants
- Express termination
- Waiver
- Abandonment
- Changing use doctrine
- No prescription or merger
Express Termination of Covenants
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)
Termination by Waiver
the covenantee fails to enforce the covenant; Enforcement is possible after improper use terminates
Termination by abandonment
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
