Real Covenants and Equitable Servitudes

Question 1

Negative Easements

Answer 1

“The Right of a Dominant Owner to stop the servient owner from doing something on the servient land.”

English Courts Recognized 4 Types:

1) Blocking Windows
2) Interfering with Air Flow
3) Removing Support (Excavation / Removal of a wall)
4) Interfering with Flow of Water in an artificial Stream.

Question 2

Vertical Privity

Answer 2

Definition:
Relationship between an original party to the covenant and her successors in Interest.
Subsequent Owner Must:
- succeed to an original party’s entire interest
- same chain of title / same ownership interest

For Burden to Run = Requires privity of the ENTIRE ESTATE
For Benefit to Run = Requires a possessory interest, ie. Tenants are in vertical privity to enforce or benefit from a real covenant.

Question 3

Equitable Servitudes

Answer 3

Enforceable on a subsequent purchaser if:
1) Parties Intended the Burden to Run
2) Must Touch and Concern the Land
3) Notice = Actual, Constructive, or Inquiry notice when the Purchaser purchases the burdened Property.
May be Implied by law (No Need for Horizontal Privity).

Question 4

Inquiry Notice

Answer 4

Notice of the circumstances surrounding the property from viewing the premises and the surrounding properties.

Question 5

Horizontal Privity

Answer 5

1) Grantor - Grantee Relationship in a deed Transferring a fee simple, or lease interest.
2) Mutual Privity = Both parties have an ongoing, simultaneous interest in some piece of property.

Question 6

Real Covenants and Equitable Servitudes

Answer 6

Agreements, Promises, or deed provisions that relate to real property and that bind or benefit subsequent owners of the properties solely because they own the property.

• Real Covenants burden Estates in Land (Not the Land Itself).
• Equitable Servitudes - Burden Subsequent owners, but are not said to “run with the land”

Question 7

Real Covenants Characteristics

Answer 7

1) Enforceable at Law
2) Require horizontal privity
3) Must be recorded to be valid.
4) Must be created by written Instrument. (Statute of Frauds).

Question 8

Touch and Concern

“Legal Relations Test”

Answer 8

• a covenant “Touches and Concerns” the land when it AFFECTS THE LEGAL RELATIONS - the benefits and the burdens - of the promisor and promisee as owners of their properties.
  e. g. Limiting use to SF Properties
• Set back requirements
• Paying Homeowners fees, or covenants to not compete.

Question 9

Common Scheme

Answer 9

Fining of a “Common Scheme” or development plan:

• Gives Subdivision Owners standing to enforce a benefit of a covenant.
• may be used to imply the mutuality of benefits and burdens
• Benefit Appurtenant to all lots in subdivision (Not personal to developer).
• All purchasers have the right to enforce the servitude against all properties subject to the common scheme.

Question 10

Vertical Privity & Touch and Concern

Neoponsit Property v. Emigrant Bank

Answer 10

Touch and Concern:

• Covenants that “run with the land” must effect legal relations: advantages and burdens of owners of the property - based on the effect of the covenant.
• If Covenant has an impact on land value = TOUCH AND CONCERN

Privity of Estate where property Owners association sues to enforce covenant on behalf of owners.

Question 11

Sanborn v. McLean (Common Scheme Found)

• 53 of 91 lots transferred by common owner were restricted to residential use
• All the lots on street + 38 Lots not expressly restricted to SF = SF homes

Answer 11

Common Scheme using an Implied Reciprocal Negative Covenant for all lots visible from the burdened lot along the same street of subdivision.
- Purchaser had constructive / inquiry Notice of the Residential character of the area.

Question 12

Sanborn v. McLean: RULE

Answer 12

RULE: Seller of two or more similarly situated lots sells one w/ restrictions of benefits to the land retained, then the servitude becomes mutual.

• Runs with the Land
• Requires actual or constructive Notice.

Question 13

Western Land Co. v. Truskolaski
(Developer wants to lift Real Covenant Restriction)
General Rule

Answer 13

As long as the ORIGINAL PURPOSE of the Covenants can be accomplished, and
the restricted area will Substantially Benefit from the enforcement
= Covenant is VALID, even if property will increase in value if used for other purposes.
BURDEN = On party trying to lift the restriction to show land is:
NO LONGER SUITABLE for RESIDENTIAL USE b/c of Changing Conditions.

Question 14

Shelly V. Kramer

Racially Restrictive Real Covenant = Violates 14 Amendment

Answer 14

• Enforcement of the Real Covenant = State action

- 14 Amendment prohibits discriminatory state action

Question 15

Real Covenants Problem 896
A+B = Agree to mutually Restrict land to SF use
- Agreement is Recorded
- B Sells To C
- C Builds and Apartment Building, What Result

Answer 15

A Sues C For Damages = Fail, b/c no horizontal privity

C Sues A for Damages (reverse situation) = Fail, no horizontal privity

Could be enforced as an equitable servitude by either party.

Question 16

Servitudes - Private Land Use Agreements

Answer 16

1) Entry = Easement
2) Entry + Removal of Attachments (Profit)
3) Right to Enforce a Restriction (Equitable Servitude / Real Covenant)
4) Right to require B to Act on B’s Land (Equitable Servitude)
5) Right to Require B to Pay $ toward Facilities (Real Covenant - at law)