Real Covenants Flashcards
What is a real covenant?
A promise about the use of the land that runs to the successors of the promisors.
What does it mean to run with the land?
An agreement that binds a successor.
- holding the successor to the agreement of the prior party
What is the benefit of the covenant?
The ability to enforce the covenants.
What is the burden of a covenant?
Being subject to it, bound by it.
What are the five requirements to run with the land?
- Writing
- Intent
- Touch and concern
- Notice
- Privity
What is the writing requirement?
Subject to the statute of fraud’s so it must be in writing.
• subject to the recording acts as well.
What is the intent requirement?
To bind a successor, the original parties must attend for the covenant to run with the land.
What is the touch and concern requirement?
• The benefit or burden of the covenant must affect both parties as owners of the land and not merely as individuals.
When will a negative covenant touch and concern the land?
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.
When will a affirmative covenant touch and concern the land?
Covenants to pay money, such as homeowners association fees.
• modern trend says that these fees do touch and concern The land.
What is the notice requirement?
Either actual notice or constructive (record) notice.
What are the two types of privity?
Horizontal privity
Vertical privity
What is horizontal privity?
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.
What is vertical privity?
Refers to the relationship between the original party to the agreement and his/her successor to the property.
What is strict vertical privity?
To run the burden of the covenant to the successor, the successor must take the original parties entire interest.
What is relaxed vertical privity?
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.
What steps do you take to determine what vertical privity is needed?
- Ask if you’re running the benefit or the burden?
- Then what kind of vertical privity is needed,
• strict vertical privity or
• relax vertical privity
What questions should you ask yourself when dealing with privity?
- Identify whether you are running the benefit or the burden,
- If it is the benefit, you need to relax vertical privity you don’t care about horizontal privity;
- If it is the burden, you need a horizontal privity and strict vertical privity.
What is the remedy for a breach of real covenant?
Damages
What is the remedy for breach of it equitable servitude?
Injunctive relief
What are the requirements to bind an successor under equitable servitude?
- Must be in writing
- Must be intended to run with the land
- Must touch and concern the land
- Successor must have notice ( actual, record, or inquire).
NO PRIVITY REQUIREMENT
What is the exception to the equitable servitude?
Implied reciprocal servitude
When is the implied reciprocal servitude exception used?
Usually comes up in planned communities (condos, subdivisions)
How is the implied reciprocal servitude created?
- Developer must intended to create a covenant on all plots in the subdivision;
- promises must be reciprocal (benefits and burdens each and every parcel equally);
- Must be negative rather than positive (it must be a restriction on owner’s use)
- Successors must be on notice of the restriction (at least inquiry notice) and
- Must be a common land.
