Real Covenants and Equitable Servitudes

Question 1

For a burden of a real covenant to run to successor in interest, successor must be in _____ with the covenator

Answer 1

Vertical privity

Question 2

If a real covenant is more restrictive than a zoning ordinance, which controls?

Answer 2

The covenant controls

Question 3

What is required for a burden of a real covenant to run to successors in interest

Answer 3

(1) covenanting parties intended that successors in interest will be bound
(2) successor in interest had notice of covenant
(3) horizontal privity between original coventing parties
(4) vertical privity between covenator and successor
(5) covenant touches and concerns the land

Question 4

Real covenant

Answer 4

Written promise to do or not do something with the land

Question 5

Horizontal privity

Answer 5

original covenanting parties share some interest in the land independent of the covenant at the time entered into covenant (e.g. grantor-grantee, landlord-tenant)

Question 6

Vertical Privity

Answer 6

Successor in interest to covenating party holds entire durational interest held by covenator at time made covenant

Question 7

Privity of contract

Answer 7

Relationship between parties to a contract

Question 8

Privity of possession

Answer 8

Relationship between parties in successive possession of real property (e.g. adverse possessors)

Question 9

Can a grantee be bound to a covenant that does not appear in his deed or chain of title?

Answer 9

Yes, if there is a common scheme for development and the grantee has notice of the covenant.

• Equitable servitude (implied negative)
• Covenant against encumbrances
• Quitclaim deed

Question 10

Equitable Servitude

Answer 10

Covenant that regardless of whether it runs with land at law can be enforced in equity against successors to burdened land who have notice of covenant

Generally created by covenants contained in writing that satisfies statute of frauds

Question 11

Negative Equitable Servitude

Answer 11

Can be implied in absence of writing if:

(1) there is a common scheme for development (plan existed at time sales of subdivision parcels began that all parcels be developed within terms of negative covenant)
(2) grantee had actual, record, or inquiry notice of covenant

Question 12

Covenant against encumbrances

Answer 12

Covenant contained in general warranty deed assuring that no visible or invisible encumbrances (easements/mortgages).

May be bound to equitable servitude even if this warranty in deed.

Question 13

Quitclaim deed

Answer 13

Conveys whatever interest, if any, grantor has in property.

Grantee may be bound to equitable servitude even if not in deed or title

Question 14

Burden of equitable servitude will run to a subsequent purchaser if:

Answer 14

(1) the covenanting parties intended that sucessors in interest be bound by the covenant
(2) the purchaser has notice of the covenant
(3) covenant touches and concerns the land (i.e. it benefits the covenator and his successor in their use and enjoyment of the burdened land)

Question 15

Cross-easement for support

Answer 15

Absent express agreement, courts will treat common land (like driveway) as belonging to each landowner to extent rests upon her land. Will imply mutual cross-easements for support (each has right to use, neither can destroy)

Question 16

Easement in gross

Answer 16

Right to use another’s land (servient tenament) independent of ownership or possession of another tract of land (no dominant tenaement)

Question 17

Easements by reservation

Answer 17

Owner of tract of land conveys title but expressly reserves the right to continue to use the tract for a special purpose after conveyance

Question 18

Easements by necessity

Answer 18

Owner of tract of land sells part of tract and by this division deprives one lot of access to a public road or utility line

Question 19

If benefited parking seeking to enforce an equitable servitude previously consented to another party’s violation of servitude, the burdened party should assert the defense of:

Answer 19

acquiesence = violation of servitude may be deemed abandonment by the servitude as to other burdened parties

Question 20

Unclean Hands

Answer 20

Defense applies when benefited party violating similar restriction on her own land

Question 21

Laches

Answer 21

Defense where benefited party fails to bring suit against burdened party within a reasonable time

Question 22

Changed Conditions

Answer 22

Defense when neighborhood has changed significantly since time servitude created so that it would be inequitable to enforce the restriction

Question 23

When will benefit of covenant run with the land>

Answer 23

1) coventing parties intended that successors in interest be benfitted by covenant
(2) vertical privity between covenantee adn successor in interest
(3) covenant touches and concerns the land

Question 24

Covenant touches and concerns the land

Answer 24

benefits covenantee and her successor in their use and enjoyment of the benefited land

Question 25

Riparian Doctrine

Answer 25

Reasonable use theory permits each riparian owner (owner of land boardering watercourse) a reasonable use of water, and downstream owner cannot enjoin reasonable use by upstream riparian owne unless substantially interferes with downstream owner’s comparable use

• Natural use: household consumption, gardening, limited grazing prevail over artificial use: irrigation, manufacturing
• Can take all need for natural use but cannot take water for artificial use unless enough for domestic needs of all other riparian owners

Question 26

Prescriptive Easement

Answer 26

(1) open and notorious
(2) adverse
(3) continuous and uninterupted for statutory period

Does not need to be exclusive