Real Covenants Flashcards
Real Covenant
Promise which is enforceable not only between the original parties of the K, BUT ALSO between the successors of either party
- future owners bound even if don’t agree to the covenant
Basic Requirements of a Real Covenant
4
1) Enforceable promise
2) Intent to promise to run with the land
3) Touch and Concern the land
4) Privity of Estate
Basic Requirements of a Real Covenant:
Intent for Promise to Run with the Land
CL: “assigns” magic word
ML: special words not needed so long as K is readable and it is inferred to run with the land
Advice: use “heirs and assigns” to indicate appurtenant
Basic Requirements of a Real Covenant:
Touch and Concern the Land
Connection btwn promise and the land
- Burden touches the land (impacts the land)
- Benefit touches the land (makes land more valuable)
How to satisfy the Touch and Concern Requirement of Real Covenants
CL: must have two parcels of land and both benefit and burden
ML: both benefit and burden or either just benefit or just burden
Privity of Estate
3
Mutual Privity
Horizontal Privity
Vertical Privity
Mutual Privity
Original parties had simultaneous interest in same land
ex: LL/tenant
CL: real covenants not recognized
ML: not req’d
Horizontal Privity
Land-based special relationship btwn original parties; no simultaneous interest in same property
Use straw man to convey to third party and then they convey back with the restriction to make real covenant
Vertical Privity
Trace ownership to original parties
Req’d by all states
TX Requirements for Real Covenants
5
1) Enforceable K
2) Intent of original parties: appurtenant
3) Proof of Intent
4) Privity of Estate
5) Touch and Concern
TX Requirements for Real Covenants:
Proof of Intent
Must either:
Relate to something in existence at the time of covenant, or
Use phrase “assigns” or a functional equivalent (can be inferred)
Based on CL
TX Requirements for Real Covenants:
Privity of Estate
MUST have either:
- mutual, or
- horizontal privity
Distinguish Real Covenant from Assignment
Real Covenants: attach to the land; transfer automatically when land is sold
Assignments: do not transfer with the land
Distinguish Real Covenant from Affirmative Easements
Real Covenants: covenantor req’d to do something
Affirmative Easements: give the ability to use w/o req’g to do something; servient tenant does not have to maintain; just can’t interfere
Distinguish Real Covenant from Negative Easement
Difficult to do
Both req to refrain from doing something
Equitable Servitudes
Enforces covenant as appurtenant even though it does not meet all req’ts of real covenants in a court of equity
- court will enforce as appurtenant even if lacking some req’ts
Elements of Equitable Servitudes
3
1) Successor to burdened land took with NOTICE of the restriction
2) Covenant LIMITS THE USE of the burdened land
3) Covenant BENEFITS the land of the party seeking to enforce it
Implied Reciprocal Equitable Servitude
AKA: Implied Reciprocal Equitable Negative Easement
Implied: not express
Reciprocal: each party benefitted
Equitable: doesn’t meet all of the elements of covenant
Servitude
Inquiring Notice
Duty to inquire from the obviousness of uniform development area
Recognized in TX
Termination of Covenants
8
1) Expressly stated
2) Statutory duration
3) Release
4) Merger
5) Detrimental reliance
6) Unclean hands
7) Acquiescence
8) Changed conditions/circumstances
Termination of Covenants:
Release
Give back to servient tenant
Doesn’t normally work b/c need everyone to agree, not just the neighbor; only allowed for the one person, not the neighborhood
Termination of Covenants:
Merger
If wait too long to enforce a covenant, the covenant is terminated
Termination of Covenants:
Acquiescence
If HOA allows too many ppl to breach covenant, they can’t complain later about someone breaching
