Real Covenants Flashcards
5 requirements for a real covenant
1) in writing
2) intent to run with land (may be presumed)
3) notice to party taking possession
4) privity (vertical and horizontal)
5) touches and concerns land
Requirements of an equitable servitude
The same requirements of a real covenant except for privity (writing, intent, notice, touch and concern)
Difference between a real covenant and equitable servitude
Real covenants provide money damages. Equitable servitudes give equitable solutions (injunction)
What are the requirements of horizontal privity?
There is a grantor/grantee relationship between the original parties
Requirements of vertical privity
Differ between burdened and benefited party
The burdened party must pass the “same” rights to all successors in interest
The benefited party need only pass “some” of the rights to successors in interest
Notice may be established . . .
When a party takes possession assuming all obligations, taking all covenants, or original document is recorded
When does a burden touch and concern the land?
Affects the physical use or enjoyment of the land
When an equity is attached to the property, one purchasing with notice . . .
Cannot stand in a different position from the one whom they have purchased from
Termination of covenants
Same way as easements, with addition of change in circumstances method, which is construed very strictly (UP case)
What are the two types of common interest communities?
Subdivisions and condominiums
Upon gaining an ownership interest in a common interest community, must
Conform with negative covenants and pay fees and assessments. The validity of a covenant is not based upon individual circumstances
What are the two types of restrictions in a common interest community and how do they differ?
Restrictions in the original document, which must be shown as arbitrary to overcome
Restrictions adopted need only to be shown unreasonable
Where a zoning ordinance and covenant collide . . .
The more restrictive one will prevail
