Real Covenants

Question 1

What are the traditional requirements for a real covenant?

Answer 1

(1) Compliance with statute of frauds
(2) Intent to bind successors
(3) Must “touch and concern” the land
(4) Notice
(5) Horizontal Privity
(6) Verticle Privity

Question 2

What requirements are required for the benefit of a covenant to run

Answer 2

(1) All but
(2) Horizontal Privity
and;
(3) Notice

Question 3

What is horizontal privity?

Answer 3

(1) A special relationship between the original parties to a promise

Question 4

What is Vertical Privity?

Answer 4

Special relationship between an original promiser and a successor

Question 5

What requirements are required for a burden of a covenant to run?

Answer 5

All six bro- including strict verticle privity

Question 6

What is an equitable servitude

Answer 6

Its like a real covenant but easier to enforce

Question 7

What is required to enforce an equitable servitude’s burden

Answer 7

(1) Statute of frauds compliance/ common plan
(2) Intent to bind successors
(3) Touches and concerns the land
(4) Notice

Question 8

What is required to enforce an equitable servitudes’ benefit?

Answer 8

(1) Statute of frauds/common plan
(2) intent to bind successors
(3) Touches and concerns the land

Question 9

Finish these flashcards w/ watching class 25

Question 10

What is the State Action Doctrine?

Answer 10

(1) Typically, only the government can violate the constitution
(2) Except for the Thirteenth amendment

Question 11

What are the three affirmative defenses against covenant enforcement?

Answer 11

(1) Unreasonableness
(2) Abandonment
(3) Changed Conditions

Question 12

What is the changed conditions defense to covenant enforcement?

Answer 12

(1) Where conditions in the neighborhood have changed from the time the covenant was made
(2) such that the benefits of the covenants cannot be substantially realized
(3) Change of conditions outside a subdivision is probably not sufficient to terminate restrictions

Question 13

What is the abandonment defense to covenant enforcement?

Answer 13

(1) When the conduct of the person entitled to the benefits
(2) Demonstrate an intent to reliquish those rights
(3) In restrictive benefits, courts look to:
(i) Number of violations of the benefit allowed
(ii) Nature and severity of the violations of the benifit
(iii) overall record of enforcing one’s benefit
(iv) whether it is still possible to realize the benefits of the restriction
(4) As explained in ‘Fink’

Question 14

What is an unreasonableness defense?

Answer 14

Trickish question: There are two versions
(1) Nahrstedt standard
(2) Restatement standard

Question 15

What is a Nahrstedt standard for unreasonable convenants?

Answer 15

When a restriction is
(1) Arbitrary
(2) Violates fundamental public policy
or;
(3) imposes a burden that far outweighs a benefit
(i) Where the unit burdened is the CIC as a whole

Question 16

What is the Restatement standard for an unreasonable convenant?

Answer 16

(1) Covenants are valid
unless;
(2) illegal
(3) unconstitutional
or;
(4) violates public policy

Question 17

What is Strict vertical privity?

Answer 17

Where verticle privity only exists where the successor holds the ‘entire’ estate that the original promisor held

Question 18

What is relaxed vertical privity?

Answer 18

Where veritvcle privtity will be found if the succesor has an estate of ‘any quantam’ on the original promisors parcel

Question 19

Will a covenant split to each piece of a partitioned land?

Answer 19

Yes, generally because another has a right to the land, so they don’t lose that just because of severance

Question 20

What are the public policy violating factors for enforcing servitudes?

Answer 20

(1) arbitrary/spiteful/capricious
(2) Unreasonably burdens a fundemental constitutional right
(3) imposes an unreasonable constraint on alienation
(4) imposes an unreasonable restraint on trade/competition
(5) is unconsionable