Real Covenants

Question 1

Real Covenant

Answer 1

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

Question 2

Basic Requirements of a Real Covenant

4

Answer 2

1) Enforceable promise
2) Intent to promise to run with the land
3) Touch and Concern the land
4) Privity of Estate

Question 3

Basic Requirements of a Real Covenant:

Intent for Promise to Run with the Land

Answer 3

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

Question 4

Basic Requirements of a Real Covenant:

Touch and Concern the Land

Answer 4

Connection btwn promise and the land

• Burden touches the land (impacts the land)
• Benefit touches the land (makes land more valuable)

Question 5

How to satisfy the Touch and Concern Requirement of Real Covenants

Answer 5

CL: must have two parcels of land and both benefit and burden
ML: both benefit and burden or either just benefit or just burden

Question 6

Privity of Estate

3

Answer 6

Mutual Privity
Horizontal Privity
Vertical Privity

Question 7

Mutual Privity

Answer 7

Original parties had simultaneous interest in same land
ex: LL/tenant
CL: real covenants not recognized
ML: not req’d

Question 8

Horizontal Privity

Answer 8

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

Question 9

Vertical Privity

Answer 9

Trace ownership to original parties

Req’d by all states

Question 10

TX Requirements for Real Covenants

5

Answer 10

1) Enforceable K
2) Intent of original parties: appurtenant
3) Proof of Intent
4) Privity of Estate
5) Touch and Concern

Question 11

TX Requirements for Real Covenants:

Proof of Intent

Answer 11

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

Question 12

TX Requirements for Real Covenants:

Privity of Estate

Answer 12

MUST have either:

• mutual, or
• horizontal privity

Question 13

Distinguish Real Covenant from Assignment

Answer 13

Real Covenants: attach to the land; transfer automatically when land is sold

Assignments: do not transfer with the land

Question 14

Distinguish Real Covenant from Affirmative Easements

Answer 14

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

Question 15

Distinguish Real Covenant from Negative Easement

Answer 15

Difficult to do

Both req to refrain from doing something

Question 16

Equitable Servitudes

Answer 16

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

Question 17

Elements of Equitable Servitudes

3

Answer 17

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

Question 18

Implied Reciprocal Equitable Servitude

Answer 18

AKA: Implied Reciprocal Equitable Negative Easement

Implied: not express
Reciprocal: each party benefitted
Equitable: doesn’t meet all of the elements of covenant
Servitude

Question 19

Inquiring Notice

Answer 19

Duty to inquire from the obviousness of uniform development area
Recognized in TX

Question 20

Termination of Covenants

8

Answer 20

1) Expressly stated
2) Statutory duration
3) Release
4) Merger
5) Detrimental reliance
6) Unclean hands
7) Acquiescence
8) Changed conditions/circumstances

Question 21

Termination of Covenants:

Release

Answer 21

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

Question 22

Termination of Covenants:

Merger

Answer 22

If wait too long to enforce a covenant, the covenant is terminated

Question 23

Termination of Covenants:

Acquiescence

Answer 23

If HOA allows too many ppl to breach covenant, they can’t complain later about someone breaching