Real Covenants

Question 1

What is a real covenant?

Answer 1

A promise about the use of the land that runs to the successors of the promisors.

Question 2

What does it mean to run with the land?

Answer 2

An agreement that binds a successor.

- holding the successor to the agreement of the prior party

Question 3

What is the benefit of the covenant?

Answer 3

The ability to enforce the covenants.

Question 4

What is the burden of a covenant?

Answer 4

Being subject to it, bound by it.

Question 5

What are the five requirements to run with the land?

Answer 5

1. Writing
2. Intent
3. Touch and concern
4. Notice
5. Privity

Question 6

What is the writing requirement?

Answer 6

Subject to the statute of fraud’s so it must be in writing.

• subject to the recording acts as well.

Question 7

What is the intent requirement?

Answer 7

To bind a successor, the original parties must attend for the covenant to run with the land.

Question 8

What is the touch and concern requirement?

Answer 8

• The benefit or burden of the covenant must affect both parties as owners of the land and not merely as individuals.

Question 9

When will a negative covenant touch and concern the land?

Answer 9

A restriction on use will usually touch and concern because they restrict what you can do with your land.

• Watch out for promises that are unenforceable such as covenants not to compete or discriminatory covenants, as they do not touch and concern.

Question 10

When will a affirmative covenant touch and concern the land?

Answer 10

Covenants to pay money, such as homeowners association fees.

• modern trend says that these fees do touch and concern The land.

Question 11

What is the notice requirement?

Answer 11

Either actual notice or constructive (record) notice.

Question 12

What are the two types of privity?

Answer 12

Horizontal privity

Vertical privity

Question 13

What is horizontal privity?

Answer 13

Refers to privity of estate, where the estate and covenant are contained in the same instrument (the deed).

• to run the burden to a successor, the original parties to the promise must have been in horizontal privity.
• look for the original parties to the agreement

• look for language in the agreement.
-ex Oliver and Caleb promised to use their property for residential purposes only.

Question 14

What is vertical privity?

Answer 14

Refers to the relationship between the original party to the agreement and his/her successor to the property.

Question 15

What is strict vertical privity?

Answer 15

To run the burden of the covenant to the successor, the successor must take the original parties entire interest.

Question 16

What is relaxed vertical privity?

Answer 16

To run the benefit of a covenant to the successor this assessor needs only take an interest that is carved of the original parties of estates.

Question 17

What steps do you take to determine what vertical privity is needed?

Answer 17

1. Ask if you’re running the benefit or the burden?
2. Then what kind of vertical privity is needed,
   • strict vertical privity or
   • relax vertical privity

Question 18

What questions should you ask yourself when dealing with privity?

Answer 18

1. Identify whether you are running the benefit or the burden,
2. If it is the benefit, you need to relax vertical privity you don’t care about horizontal privity;
3. If it is the burden, you need a horizontal privity and strict vertical privity.

Question 19

What is the remedy for a breach of real covenant?

Answer 19

Damages

Question 20

What is the remedy for breach of it equitable servitude?

Answer 20

Injunctive relief

Question 21

What are the requirements to bind an successor under equitable servitude?

Answer 21

1. Must be in writing
2. Must be intended to run with the land
3. Must touch and concern the land
4. Successor must have notice ( actual, record, or inquire).

NO PRIVITY REQUIREMENT

Question 22

What is the exception to the equitable servitude?

Answer 22

Implied reciprocal servitude

Question 23

When is the implied reciprocal servitude exception used?

Answer 23

Usually comes up in planned communities (condos, subdivisions)

Question 24

How is the implied reciprocal servitude created?

Answer 24

1. Developer must intended to create a covenant on all plots in the subdivision;
2. promises must be reciprocal (benefits and burdens each and every parcel equally);
3. Must be negative rather than positive (it must be a restriction on owner’s use)
4. Successors must be on notice of the restriction (at least inquiry notice) and
5. Must be a common land.

Question 25

How is the equitable servitude terminated?

Answer 25

Terminates as an easement does

Question 26

What is the change circumstance doctrine?

Answer 26

A situation where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place.

• such change would terminate the restriction.