Real Covenants & Equitable Servitudes Flashcards
At common law, horizontal privity is required _________.
A. For a real covenant to be created
B. For the burden of a real covenant to run with the land
C. For a real covenant to touch and concern the land
D. For the benefit of a real covenant to run with the land
B. For the burden of a real covenant to run with the land
At common law, horizontal privity is required for the burden of a real covenant to run with the land. It is NOT required simply for a real covenant to be created. A real covenant is a written promise to do or not do something on the land. The burden of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be bound by the covenant;2. The successor in interest has notice of the covenant;3. There is horizontal privity between the original covenanting parties;4. There is vertical privity between the covenantor and her successor in interest; and5. 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). Horizontal privity means the original parties to a real covenant shared some interest in the land independent of the covenant at the time they entered the covenant (e.g., as grantor and grantee). At common law, horizontal privity is NOT required for the benefit of a real covenant to run with the land. More is required for the burden to run, but the benefit of a covenant will run with the land if: 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; and3. The covenant touches and concerns the land.
Horizontal privity exists between:
A. An original party to a real covenant and her successor in interest
B. A party burdened under a real covenant and any party seeking to enforce the covenant
C. Parties to a real covenant who shared an independent interest in the land at the time they entered the covenant
D. The original parties to a real covenant, regardless of their relationship
C. Parties to a real covenant who shared an independent interest in the land at the time they entered the covenant
covenant;2. The successor in interest has notice of the covenant;3. There is horizontal privity between the original covenanting parties;4. There is vertical privity between the covenantor and her successor in interest; and5. The covenant touches and concerns the land. Horizontal privity requires that the original covenanting parties shared some interest in the land independent of the covenant at the time they entered the covenant (e.g., as grantor and grantee). Thus, it does NOT exist between the original parties to a real covenant absent such a relationship, nor does it exist generally between a party burdened under a real covenant and any party seeking to enforce the covenant. In contrast with horizontal privity, vertical privity refers to the relationship between an original party to a real covenant and her successor in interest. For the burden of a covenant to run, this element is satisfied if the successor holds the entire durational interest held by the covenantor at the time she made the covenant.
Which is not required for the benefit of a real covenant to run with the land?
A. Vertical privity
B. The covenant touches and concerns the land
C. Notice
D. Intent
C. Notice
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. A real covenant is a written promise to do or not do something on the land. The benefit of the covenant will run with the land if: 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). In contrast, for the burden of a real covenant to run to a subsequent purchaser, she must have actual or constructive notice of it at the time she acquires the burdened land and there must be horizontal privity between the original covenanting parties, in addition to the above requirements.
If the benefited party seeking to enforce an equitable servitude previously consented to another party’s violation of the servitude, the burdened party should assert the defense of:
A. Unclean hands
B. Acquiescence
C. Laches
D. Changed conditions
B. Acquiescence
If the benefited party seeking to enforce an equitable servitude previously consented to another party’s violation of the servitude, the burdened party should assert the defense of acquiescence. Acquiescence in a violation of the servitude may be deemed abandonment of the servitude as to other burdened parties. The burdened party should not assert the defense of unclean hands. This defense applies when the benefited party is violating a similar restriction on her own land. Here, there is no indication that the benefited party herself is violating the servitude. The burdened party should not assert the defense of laches. This defense applies when the benefited party fails to bring suit against the burdened party within a reasonable time. Here, there is no indication that the benefited party’s suit is untimely. The burdened party should not assert the defense of changed conditions. This defense applies when a neighborhood has changed significantly since the time a servitude was created such that it would be inequitable to enforce the restriction. Here, there is no indication that a neighborhood has changed.
Which of the following is not required for the benefit of a real covenant to run to successors in interest?
A. There is horizontal privity between the original covenanting parties.
B. The covenanting parties intended that successors in interest be benefitted by the covenant.
C. The covenant touches and concerns the land.
D. There is vertical privity between the covenantee and her successor in interest.
A. There is horizontal privity between the original covenanting parties.
Horizontal privity between the original covenanting parties is not required for the benefit of a real covenant to run to successors in interest. A real covenant is a written promise to do or not to do something on the land. The benefit of the covenant will run to successors in interest if: The covenanting parties intended that successors in interest be benefitted by the covenant;There is vertical privity between the covenantee and her successor in interest; andThe covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land). For the burden of a real covenant to run to successors in interest, vertical privity requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time he made the covenant. On the other hand, vertical privity for the running of the benefit is satisfied when the successor in interest holds any possessory estate, even a lesser estate.
Which of the following best states the relationship between covenants and zoning ordinances?
A. If a zoning ordinance is more restrictive than a covenant, a landowner need only comply with the covenant.
B. A landowner must comply with both covenants and zoning ordinances.
C. Because zoning is enforced by the government, zoning ordinances always take precedence over covenants.
D. If a covenant is more restrictive than a zoning ordinance, a landowner need only comply with the zoning ordinance.
B. A landowner must comply with both covenants and zoning ordinances.
A landowner must comply with both covenants and zoning ordinances. A covenant is a promise to do or not to do something on the land. A zoning ordinance is a statute that regulates the use of land. Both must be complied with, and neither provides any excuse for violating the other. Thus, if a covenant is more restrictive than a zoning ordinance, the covenant controls. Likewise, if a zoning ordinance is more restrictive than a covenant, the zoning ordinance controls. Although zoning is enforced by the government rather than by private suit, this fact alone does not give zoning ordinances precedence over covenants. As explained above, both must be complied with.
A landowner and his neighbor purchased adjoining undeveloped lots. After both built homes on their respective lots, the landowner suggested to the neighbor that a common driveway be built where the two lots joined. The neighbor agreed. The landowner and the neighbor split the cost of constructing the driveway and entered into a written agreement to equally share the costs of its upkeep and maintenance. The agreement was recorded in the county recorder’s office. Two years later, the neighbor built a new driveway located entirely on his lot. The common driveway, which the landowner continued to use but which the neighbor no longer used, began to deteriorate. The landowner asked the neighbor for money to maintain the common driveway, but the neighbor refused to contribute. Three years later, the neighbor conveyed his lot to a friend. The friend entered into possession and used only the driveway built by the neighbor. By this time, the common driveway had deteriorated badly and contained numerous potholes. The landowner asked the friend to pay half of what it would take to repair the common driveway. The friend refused. The landowner repaired the driveway and sued the friend for 50% of the cost of repairs. Will the landowner prevail?
A. Yes, because easements run with the land.
B. Yes, because the agreement between the landowner and the neighbor was recorded.
C. No, because the neighbor abandoned use of the easement.
D. No, because the landowner is not in privity of contract with the friend.
B. Yes, because the agreement between the landowner and the neighbor was recorded.
The landowner will prevail because recording the agreement gave the friend constructive notice, thus preventing her from claiming the protection of the recording act as a defense to enforcement of the covenant. A covenant at law will run with the land and be enforceable against subsequent grantees if: (i) the contracting parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) the covenant touches and concerns the property; and (iv) the burdened party has notice of the covenant. If common driveway owners agree to be mutually responsible for maintaining the driveway, the burdens and benefits of these covenants will run to successive owners of each parcel. The implied cross-easements for support satisfy the horizontal privity requirement because they are mutual interests in the same property. Each promise touches and concerns the adjoining parcel. So here, where the friend is in vertical privity with the neighbor (holding the same interest he held) and has constructive notice, she will be bound by the agreement to maintain the driveway. Although easements appurtenant, such as those involved in these facts, pass with the transfer of the estates involved, (A) is wrong because the easements are not at issue here. The easements involved are implied cross-easements for support and allow each party the right to enter the other’s property when using the driveway. The issue here is the accompanying covenant to pay for the maintenance of the driveway. (C) is wrong for the same reason. Whether the easement has been abandoned does not affect the enforceability of the separate covenant. (D) is wrong because privity of estate, not privity of contract, is required for the burden of the covenant to run.
All of the deeds for the lots on a city block contained a restrictive covenant requiring that all houses built on the lots be set back a minimum of 50 feet from the sidewalk. Local zoning regulations required that all homes on the block be set back a minimum of 35 feet from the sidewalk. A man purchased a lot on the block on which it would be possible to build a home with a 50-foot setback. However, the man applied to the city zoning commission for a variance reducing the setback to 30 feet from the sidewalk. In his petition, the man cited the unusual shape of the lot and asserted that it would cause hardship for him to build in compliance with the 35-foot setback required by the zoning regulations. The zoning commission granted the man the variance. A woman whose home was located on the block noticed surveyors putting up ropes 30 feet from the sidewalk on the man’s lot, and she discovered that the man planned to build a home with only a 30-foot setback. The woman brings suit to enjoin the man from building a residence with a setback of less than 50 feet. Who will prevail?
A. The man, because zoning regulations take precedence over restrictive covenants as a matter of public policy.
B. The man, because equity will not impose a hardship.
C. The woman, because the man will be unjustly enriched if he is permitted to build a 30-foot setback.
D. The woman, because a zoning variance does not affect the enforcement of a restrictive covenant.
D. The woman, because a zoning variance does not affect the enforcement of a restrictive covenant.
The woman will be able to enforce the restrictive covenant as an equitable servitude. Zoning regulations and restrictive covenants in private deeds are completely separate concepts. Both must be complied with, and neither provides any excuse for violating the other. Thus, a variance from the government regulation does not prevent enforcement of the private covenant. The court will enforce the covenant as an equitable servitude because the woman is seeking an injunction. An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. Here, all of the deeds contained the restrictive covenant. There is no indication that the man did not have notice of the restriction, and it is both possible and reasonable for him to comply with the restriction at this stage. Privity of estate is not required because the majority of courts enforce the servitude as an equitable interest in the land itself. Hence, the woman will obtain the injunction. (A) is incorrect because, as noted above, zoning regulations and covenants in deeds are completely separate; thus, the zoning regulation would not take precedence over the covenant. The only time a zoning regulation might prevent enforcement of such a covenant is where enforcement would result in a zoning violation (e.g., covenant calls for single family residential housing only, while the land is zoned strictly commercial). (B) is an incorrect statement of law. Equity will impose a hardship, although it will try to balance the hardships between the parties. Here, the hardship on the man is not unreasonable because it is possible for him to build a house that complies with the setback restriction and he has not yet dug the foundation for the house he was planning. (C) is incorrect because nothing in the facts indicates that the man will be unjustly enriched by building his home in violation of the covenant; e.g., there is no indication that his home or property will be worth more simply because it has a 30-foot setback rather than a 50-foot setback.
The owner of a large parcel of land subdivided it into 20 separate lots. He sold lots 1-19, retaining lot 20 for himself to live on. The deeds for each of the 19 lots sold by the owner contained the following restriction: “All lots within the subdivision shall be used for residential purposes only.” The purchasers of lots 1-19 each built residences on their property. The owner lived on lot 20 until his death, when it was sold without any restrictions to a buyer. Subsequently, the buyer sold lot 20 to a grocer, furnishing him with an abstract of title and assuring him that the land was unrestricted. The abstract of title showed that lot 20 was not restricted. The following year, the grocer decided to build a grocery store on lot 20. A homeowner who owned adjoining property in the subdivision informed the grocer of the restriction and told him that he would be unable to build the grocery store. If the homeowner brings suit seeking an injunction against the grocer’s building of the grocery store, will she prevail?
A. No, because the grocer had neither actual nor constructive notice of the restriction.
B. No, because the grocer relied on the abstract of title and the buyer’s representation in good faith.
C. Yes, because the property owners in the subdivision have a right to keep the subdivision in the condition that they want it.
D. Yes, because the grocer will be charged with notice as a result of the residential character of the subdivision.
D. Yes, because the grocer will be charged with notice as a result of the residential character of the subdivision.
The homeowner will prevail because the grocer will be charged with notice as a result of the residential character of the subdivision. When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative equitable servitudes binding all the parcels in the subdivision may be implied if: (i) there exists a common scheme for development, and (ii) the grantee has notice of the covenant. The requisite notice may be acquired through actual notice (direct knowledge of the covenants in the prior deeds), inquiry notice (the neighborhood appears to conform to common restrictions), or record notice (if the prior deeds are in the grantee’s chain of title he will, under the recording acts, have constructive notice of their contents). Here, the owner’s common scheme is evidenced by the general pattern of prior restrictions: lots 1-19 were restricted to residential use. Because the facts state that the other purchasers of lots 1-19 each built residences on their property, the grocer would at least be charged with inquiry notice of the restriction. Thus, (A) is incorrect. (B) is incorrect because the grocer’s reliance on the abstract of title and the buyer’s representation would not negate the inquiry notice. (C)’s reasoning would not be sufficient to bind the grocer to the covenant.
