Real Covenants & Equitable Servitudes

Question 1

What privity must exist for the benefit of a real covenant to run with the land?

Answer 1

Vertical privity.

Question 2

What is a real covenant?

Answer 2

A real covenant is a written promise to do or not do something on the land.

Question 3

The benefit of the covenant will run with the land if:

Answer 3

1. The covenanting parties intended that successors in interest be benefitted by the covenant;
2. There is vertical privity between the covenantee and her successor in interest; and
3. The covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land).

Question 4

For the benefit to run, when does vertical privity exist?

Answer 4

Vertical privity exists when the successor in interest holds even a lesser estate than the original covenantee had.

Question 5

For the burden to run, what does vertical privity require?

Answer 5

That the successor hold the covenantor’s entire durational interest.

Question 6

What is horizontal privity?

Answer 6

Horizontal privity means that the original covenanting parties shared some interest in the land independent of the covenant at the time they entered into the covenant (e.g., as grantor and grantee).

Question 7

When is horizontal privity required?

Answer 7

Horizontal privity is only required for the burden to run.

Question 8

Is horizontal privity require for the benefit of a covenant to run with the land?

Answer 8

No. It is only required for the burden to run.

Question 9

For the burden of a real covenant to run to successors in interest, the original parties to the covenant must be in __________.

Answer 9

Horizontal privity.

Question 10

The burden of the covenant will run to successors in interest if:

Answer 10

i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; (iii) there is horizontal privity between the original covenanting parties; (iv) there is vertical privity between the covenantor and her successor in interest; and (v) the covenant touches and concerns the land.

Question 11

What is privity of contract?

Answer 11

Privity of contract refers to the relationship between parties to a contract.

Question 12

What is privity of possession?

Answer 12

Privity of possession refers to the relationship between parties in successive possession of real property (e.g. adverse possessors).

Question 13

Must parties be in vertical privity for the burden to run? Why?

Answer 13

The original parties to the covenant need not be in vertical privity for the burden to run. Vertical privity requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time she made the covenant. It does not refer to the relationship between the original covenanting parties.

Question 14

If someone burdened by an equitable servitude can raise the defense of estoppel to prevent its enforcement, it is probably because the benefited party:

Answer 14

Acted so that a reasonable person would believe she had waived or abandoned the covenant, and the burdened party relied on this

Question 15

If the benefited party is violating a similar restriction on her own land, the burdened party would raise the defense of

Answer 15

Unclean hands

Question 16

If the benefited party failed to bring suit against the burdened party within a reasonable time, the burdened party would assert

Answer 16

the suit is barred by laches

Question 17

If the benefited party is attempting to enforce a servitude in a neighborhood that has changed significantly since the time the servitude was created, the burdened party would raise the defense of

Answer 17

Changed conditions

Question 18

What is a cross-easement for support?

Answer 18

An easement implied for adjoining landowners who share a common wall or driveway.

Question 19

bsent an express agreement, courts will treat a common wall or driveway as

Answer 19

belonging to each landowner to the extent that it rests upon her land.

Question 20

Courts also will imply mutual cross-easements for support, with the result that

Answer 20

each party has the right to use the wall or driveway, and neither party unilaterally can destroy it.

Question 21

What is an easement in gross?

Answer 21

An easement in gross is an easement that exists independent of the holder’s ownership or possession of another tract.

Question 22

What is the right of lateral support?

Answer 22

The right to have one’s land supported by the land next to it (e.g., undisturbed by excavations on adjoining land).

Question 23

What is the right of subjacent support?

Answer 23

The right to have one’s land supported by the earth underneath it (e.g., undisturbed by the extraction of minerals below).

Question 24

If a common scheme for the development of a subdivision exists and a grantee had notice of covenants that were not contained in his deed, a court may imply __________.

Answer 24

A reciprocal negative servitude.

Question 25

How is an equitable servitude created?

Answer 25

An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) contained in a writing that satisfies the Statute of Frauds.

Question 26

When can an equitable servitude be enforced against assignees?

Answer 26

Regardless of whether it runs with the land at law, an equitable servitude can be enforced in equity against assignees of the burdened land who have notice of it.

Question 27

When may negative reciprocal servitudes be implied?

Answer 27

1. There is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant); and
2. The grantee had actual, record, or inquiry notice of the covenant.

Question 28

To what does the common scheme doctrine apply?

Answer 28

Negative covenants and equitable servitudes.

Question 29

What is an affirmative covenant?

Answer 29

An affirmative covenant requires the holder of the servient estate to do something on the land, increasing her obligations in connection with it.

Question 30

Will courts imply affirmative covenants?

Answer 30

No. Although a written affirmative covenant may be enforced as an equitable servitude if the plaintiff seeks an injunction rather than damages, courts will not imply such a burden.

Question 31

What is an equitable covenant?

Answer 31

An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it.

Question 32

What is required for an equitable servitude to bind a party’s successor in interest.

Answer 32

Intent.

Question 33

The burden of an equitable servitude will run to successors in interest if:

Answer 33

1. The covenanting parties intended that successors in interest be bound by the covenant;
2. The successor in interest has notice of the covenant (if she paid value); and
3. The covenant touches and concerns the land (i.e., it benefits the covenantor and his successor in their use and enjoyment of the burdened land).

Question 34

The benefit of an equitable servitude will run to successors in interest if:

Answer 34

1. The covenanting parties intended that successors in interest be benefited by the covenant; and
2. The covenant touches and concerns the land.

Question 35

To enforce either the burden or the benefit of an equitable servitude, what type of privity is required?

Answer 35

Neither Horizontal privity between the original covenanting parties or vertical privity between the covenantor and his successor in interest are required to enforce either the burden or the benefit of an equitable servitude.

Question 36

Vertical privity also relates to real covenants and means that:

Answer 36

(i) the burden will run at law if the successor holds the entire durational interest held by the covenantor at the time he made the covenant, and (ii) the benefit will run at law even if the successor holds a lesser estate.

Question 37

What type of privity is required for the benefit of a real covenant to run to successors in interest?

Answer 37

Horizontal privity between the original covenanting parties.

Question 38

vertical privity for the running of the benefit is satisfied when

Answer 38

the successor in interest holds any possessory estate, even a lesser estate.

Question 39

For the burden of a real covenant to run to a successor in interest, the successor must be in __________ with the covenantor.

Answer 39

Vertical privity

Question 40

Is notice required for the benefit of a real covenant to run with the land?

Answer 40

No. For the benefit of a real covenant to run with the land, notice is NOT required. If the owner of the benefitted parcel discovers the covenant after acquisition, she still can sue to enforce it.

Question 41

For the burden of a real covenant to run to a subsequent purchaser, she must have

Answer 41

1. Actual or constructive notice of it at the time she acquires the burdened land
2. Horizontal privity between the original covenanting parties
3. The requirements for the benefit of the covenant to run with the land (1. The covenanting parties intended that successors in interest be benefitted by the covenant; 2. There is vertical privity between the covenantee and her successor in interest; and 3. The covenant touches and concerns the land).

Question 42

Two neighbors install a common driveway and covenant to be mutually responsible for its maintenance.
If one conveys his property by a deed that does not mention the driveway, is his grantee mutually responsible for maintaining it?

Answer 42

Yes, because the burden of the maintenance covenant runs to successors in interest. . If adjoining landowners agree to be mutually responsible for maintaining a common driveway, the burdens and benefits of these covenants will run to successive owners of each parcel.

Question 43

When does an easement by necessity arise?

Answer 43

An easement arises by necessity when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line.