Real Covenants

Question 1

Real Covenant Definition (General)

Answer 1

a group of landowners get together to create a restriction that would bind and benefit future landowners. These restrictions (called covenants), run with the land

Question 1

What is the “law definition” of real covenants?

Answer 1

a promise concerning the use of land that benefits and burdens both the original parties to their successors

Question 2

What is the burden?

Answer 2

the duty to perform the promise is the

Question 3

What is the benefit?

Answer 3

The duty to enforce the promise

Question 4

What are the elements of the real covenant?

Answer 4

1. compliance with statute of frauds: the covenant must be contained in a document that satisfies the statute of frauds
2. intent to bind successor: the original parties must intend to bind successors. The needed intent is usually found in the express language of the document, but it may also be inferred from circumstance.
3. touch and concern: must relate to enjoyment, occupation, or use of property
4. notice: the promisor’s successor must have notice of the covenant. can be actual, record, or inquiry notice.
5. horizontal privity: relationship between the original parties to the promise. Transfer of interest other than the covenant itself.
   a. mutual interest: where original parties have mutual simultaneous interests in the affected land
   b. successive interest: grantor-grantee relationship
   c. no requirement

6.vertical privity: relationship between original party to the interest and the successor
a. burden: vertical privity exists only if the successor receives entire estate of the promiSOR
b. benefit: less demanding test is used , if successor receives either the entire estate or lesser estate of the promiSEE

Question 5

What is damages for real covenant?

Answer 5

money damages

Question 6

What is equitable servitude elements? (how do they relate and differentiate between covenant?:

Answer 6

no horizontal or vertical privity required, and remedy is injunction

Question 7

What is SoF( common plan) in the context of Equitable servitudes

Answer 7

• Common plan = when a developer has manifested a common plan to impose uniform restrictions on a subdivision, all lots are burdened and benefitted by the restrictions even if they do not appear in the chain of title to every lot
• EVIDENCE of common plan  sales literature, statements by developer, percentage of deeds containing restrictions (most important)