Real Covenants and Equitable Servitudes Flashcards
What are Real Covenants and Equitable servitudes and where did they come from?
RC and ES’s: property rights that run with the land.
+ Creatures of the industrial revolution.
+ The usage right follows the land, and when that land passes from one owner to the next, the right is still present
True or false: RC’s and ES’s are very common and thus not worth much
False. Extremely Valuable and Rare: Sink their tentacles into the land. And bind future owners of the land.
What are the ways to create a RC and ES?
RC= SoF only
ES = may be implied from a city scheme
How should one tackle an ES or RC problem?
Far more elements required for the burden to run.
Tackle the burden first, since it’s the biggest chunk of material.
Easier to be a plaintiff, and much harder to be the right defendant.
What are the requirements for the burden to run in a RC dispute?
Requirements for BURDEN to run for a RC:
+ Intent: For RC, express intent required, and must meet the statute of frauds.
+ Notice - only need 1 type: Actual notice, Inquiry notice, Constructive record notice
+ Horizontal privity: A way of looking at whether there exists between the original promisor and promisee any relationship that would heighten their relationship to a property/privity of estate relationship.
+ Vertical privity: Did the same estate transfer?
Adverse possessor does NOT COUNT, because brand new title vests by law.
+ Touch and concern: Requirement met if it is any negative covenant or an affirmative covenant to pay $
What is the biggest differences between RC’s/ES’s and Easements?
Is this reciprocal?
Classic easements → one-directional land use (right of way, road access) helping one party
RC’s and ES’s → usually involving multiple parties/lots
RC’s and ES’s → Benefits and burdens are truly equal
RC’s and ES’s → Private land use controls (gated communities, HOA’s) to maintain uniformity
RC’s and ES’s → Used to discriminate and exclude various minority groups, not benign
True or false: For the doctrine of changed conditions to be enacted to void a RC or ES, it must be incredibly dramatic change
True. For the doctrine of changed conditions to nullify a restrictive covenant, the changes must be so radical as to practically destroy the essential objects and purposes of the agreement.
As long as the restriction is of value to some land, courts will usually not terminate it, even if the conditions have changed in such a way that the restriction decreases the value of the land.
A and B are neighbors. They agree in a contract and on their “successors and assigns” to only build single family homes. The contract is recorded with the county clerk.
B dies and transfers her estate to C. A dies and transfers her estate to D.
D builds an apartment complex. C sues D for money damages.
A —–SFH—– B
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D —-suit—-C
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1) Burden analysis: is D the right defendant? Does D get the burden of A and B’s agreement?
Does the burden run to D?
a) Intent = yes. Express and in a contract/agreement between A&B.
b) Notice = yes. Constructive record notice.
c) HP = A & B are neighbors which is a bummer bc there no HP between neighbors. (one common owner, grantor/ee, or a strawman)
d) VP = aka: did the same estate transfer? Yes. D got blackacre in FSA.
e) T&C = aka: negative promise on land use. Yes. Agreement to only build SFH.
The burden fails to run the D bc as neighbors there was no HP between A & B.
2) Benefit analysis: is C the right plaintiff? Does C get the benefit of A and B’s agreement?
Does the benefit run to C?
a) Intent = yes. Express and in contract btwn A&B
b) VP = yes. C got brownacre in FSA
c) T&C = yes.
The benefit does run to C for the RC, so C has a right to sue D. C can only sue D for an injunction, not money damages.
A and B are neighbors. They agree in a contract and on their “successors and assigns” to only build single family homes. The contract is recorded with the county clerk. F violates the condition. D sues F for money damages and an injunction.
A —————– B
C E
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D —-suit—- F
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Because D & F are successors so we need to analyze both the burden and benefit. And /bc money damages and injunction look at both RC and ES.
1) Does the burden run to F for a RC? (is F the right defendant)
o Intent = yes. A & B’s intent was express / in contract
o Notice = constructive record notice.
o HP = no bc A&B are merely neighbors.
o VP = yes. F has ownership of greenacre in FSA
o T&C = SFH requirement which is a negative promise on land use
No the burden does not run to F for the RC. No money damages.
2) Does the benefit run to D for a RC? (can D even sue F?)
o Intent = yes same as above
o VP = yes. D has ownership of redacre in FSA
o T&C = yes, negative promise on the land use.
Yes, the benefit does to D, and D can sue.
3) Does the burden run to F for an ES?
o Intent = yes
o Notice = yes
o T&C = yes
Yes, the burden does run to F // liable for an injunction.
D can sue because the benefit runs to her, however the burden does not run to F for the RC so F is only liable for an injunction, not money damages.
A is a common owner. conveys half of her property to B and keeps the other portion for herself. A&B agree to only have SFH, record with county clerk. B sells to X. X builds an apartment complex. A sues X for money damages.
A
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B A
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X
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Does the burden run with X for the RC?
a. Intent – yes, express intent between A&B.
b. Notice – constructive record notice.
c. HP – although, the agreement was not created until after the property was conveyed, A was the original owner. Yes.
d. VP – yes. Same estate transferred.
e. T&C – yes, negative promise on land use.
Because A has the benefit of the RC and bc the burden runs to X, A can sue X for money damages.
A, B, and C are neighbors. They agree to only build SFH and record the contract with the county clerk. A dies and transfers her estate to X. B conveys her property to Z. Z builds an apartment building. C sues Z for an injunction.
A ——– B ——— C
X Z
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Because C was part of the original agreement/contract, she has the benefit of the ES so we don’t need to do that analysis.
Burden running for an ES:
a) Intent = yes express agreement
b) Notice = constructive record notice
c) T&C = negative promise on land use
C can sue Z for an injunction bc the burden runs to Z.
Anya, Bella, Camilla, and Damien all own houses in adjacent lots on a small island. They all have 360 degree views of the ocean from their roofs and they all decide they want to keep it that way, so they agree to never build a structure over 40 ft. They write this down and indicate that the promise is to run with the land.
Three years later, Anya dies and devises her house to her son, Adrian. That same year, Bella’s house is condemned by the government and 2 years later, Eden purchases it and moves in. She decides she’s going to knock down the house and build 50-foot Wallmart. Adrian sues. What result?
If Adrian sues for money, they we look to whether the burden and benefit run with a RC.
Starting with the burden, there is express intent with A-D’s written agreement, there is inquiry notice since anyone in the area would have noticed the symmetry with the homes, vertical privity since the transfer between B-govt-E was the same estate, touch and concern is confirmed since this is a negative covenant.
Unfortunately the requirement for HP is not met, since the original grantors were merely neighbors when they made this promise to each other. So Adrian could not sue Eden for monetary damages.
However, Adrian could sue Eden for an injunction. Here, we look at the requirements for the burden and benefit to run with an ES. We have already established intent, inquiry notice, as well as touch and concern for the benefit to run (E is the right defendant). For the benefit to run, we established intent and touch and concern above. Therefore, Adrian would likely be successful in seeking an injunction from Eden’s plans to build a Walmart.
