real covenants , enforcement and running of the covenants Flashcards
elements of covenants
notice
intent
touch and concern
horizontal privity
vertical privity
equitable servitude
requires notice
intent
and touch and concern
NO PRIVITY required - for burden to run with the land
when does the burden run/ what does it mean for the burden to run
When original party seeks to have the burden run against the promisors successor
- the original promisee might seek to enforce the covenant against the promisor’s successor;
here, the issue would be whether the burden runs
when does the benefit run/ what does it mean for the benefit to run
when the promisors successor seeks to enforce the benefit against the original party
-the promisee’s successor could try to enforce the covenant against the original
promisor; here, the issue is whether the benefit runs
what does it mean when the burden and benefit run with the land
promisee’s successors tries to sue the promisors successor
here, both the
burden and the benefit must run
equitable servitude what is required for the burden to run with the land?
- notice
- intent
- touch and concern
- writing or in common scheme if negative
** privity is not required for the burden to run with the land for equitable servitude
equitable servitude what is required for the benefit to run with the land?
intent
touch and concern
writing or common scheme if negative
** NOTICE & PRIVITY is not required for the benefit to run with the land for equitable servitude
real covenants what is required for the burden to run with the land?
-notice
-intent
-touch and concern
-horizontal privity
-vertical privity
-writing
real covenants what is required for the benefit to run with the land?
-notice
- intent
- touch and concern
- vertical privity
-writing
** NO NOTICE AND HORIZONTAL PRIVITY required for the benefit to run with the land for real covenants
affirmative easement
the right to use another’s property for a specific purpose
real covenant
a promise to do or not to do something on the land. promise runs with the land, not the owners.
not all covenants enforced as equitable servitudes
monetary damages are available as remedies, if injunction is wanted then equitable servitude would be better to sue on.
equitable servitude
promises concerning the use of the land that benefit and burden the original parties to the promise and their successors.
remedies are injunctions
reciprocal negative servitude
when the individual lots in a subdivision or common plan, have an express restriction within their deed, the restrictions will apply to the entirety of the neighbourhood, or common plan.
remedies are injunctions
easement appurtenant
an easement that benefits the landowners in use of another tract of land
benefit and burden of easement appurtenant automatically pass with transfers of the land, regardless if it is mentioned in the conveyance
easement in gross
easement that benefits only the specified individual the use of another tract of land
generally not transferable, modern courts have recognized limited right to transfer to 3rd party if its for commercial use
example –> utility line, pipelines
