Real Covenants + Equitable Servitude

Question 1

Real Covenant

Answer 1

Promise respecting the use of land that..
a. benefits and burdens the original parties to the promise and their successors, and
b. is enforceable in an action for compensatory damages.

Question 2

Affirmative Covenants

Answer 2

Compels the burdened state to do something
Ex: keep the lawn at a certain length

Question 3

Negative Covenants

Answer 3

Prohibits the burdened estate from doing something.
EX: cannot plant certain flowers.

Question 4

Running with the Land at law

Answer 4

Is remedied with damages.
At common law, courts held that a covenant does not run with the land at law unless it met the 5 part test.
a. intent
b. touch and concern the land
c. notice
d. horizontal privity
e. vertical privity

Question 5

Intent

Answer 5

the parties must intend for the covenant to run with the land
b. language such as “all successors and assigns” signifies that intent explicitly, but courts will also imply intent from surrounding circumstances.

Question 6

Touch and Concern the land

Answer 6

This factor attempts to distinguish between promises that are personal in nature and those that have to do with use and enjoyment of the land itself.
-Typically looking at physical elements of the property

Question 7

Notice

Answer 7

A bonafide purchaser who takes without notice of the covenants is not bound by them.

Question 8

Horizontal Privity

Answer 8

Between original parties
Majority: exists with contract
Minority: a. Landlord-tenant privity, grantor-grantee privity, mutual privity.

Question 9

Vertical Privity

Answer 9

Between successive parties.
a. Requires a connection between successive owners of the benefited and burdened property.
b. Requires that the party succeed to the same interest in land burdened or benefited by the covenant.

Question 10

Equitable Servitude

Answer 10

Same restrictions as real covenants but enforced in equity. Does not require privity but must meet
a. intent (the parties must intend that the promise bind subsequent owners)
b. touch and concern (the promise must have to do with ownership and use of the property, not a personal obligation.)
c. notice (the burdened party must have notice of the restriction)