Real Covenants & Equitable Servitudes Flashcards
Private promissory obligations
Regarding land use
That are enforceable not only between the original parties but also by and against the original parties’ successors in interest simply because they have succeeded to the original parties’ properties
Real Covenants & Equitable Servitudes
Generally authorize an affirmative use of the servient land
Usually impose only a passive obligation on the servient landowner
Easements
Generally impose an affirmative obligation on the servient owner
Real Covenants & Equitable Servitudes
If all requirements are satisfied, a _______ can be enforced either as a real covenant or as an equitable servitude.
promise
An enforceable promise between the original parties that binds successor owners
Real Covenants
A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors
Real Covenants
2-sided promise
Real Covenants
the right to enforce the promise
Benefit
the duty to perform the promise
Burden
promise to perform a particular act
Affirmative covenant
a promise not to perform a particular act
Negative covenant
Compliance with the Statute of Frauds
Original parties must have had the intent for the covenant to “run with the land” and bind successor owners
The covenant must “touch and concern” the land
Notice to the successor owner
Horizontal privity
Vertical privity
Elements
Real Covenants
Must relate to the use, enjoyment, or occupation of real property
touch and concern
The original parties to the promise must have been in privity of estate
mutual interest and successive interest standards
Horizontal privity
The original party to the promise and the successor must be in privity of estate
The successor must have received the same estate that the original party had, i.e., conveying FSA from A to B
Vertical privity
Benefit Side
satute of Frauds Intent to bind Touch and concern Notice Horizontal privity Vertical privity
Burden Side
Statute of Frauds
Intent to bind
Touch and concern
Vertical privity
Definition: an enforceable promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors
Equitable Servitudes
Original parties must have had the intent for the covenant to “run with the land” and bind successor owners
Equitable Servitudes
the successive owner may be bound by an equitable servitude even if the Statute of Frauds is not met
Common plan exception
There was a common scheme or development, such as a subdivision, involving multiple parcels
The developer intended to impose uniform restrictions on all parcels but only some were in fact burdened
All parcels will be bound by the uniform restrictions even if the restrictions do not appear in the chain of title for every lot if the evidence establishes a common plan that a successive owner should have been aware of
Common plan exception
May not be terminated by equitable doctrines such as unclean hands, laches
Real Covenants
May be terminated by equitable doctrines such as unclean hands, laches
Equitable Servitudes
The owner of a property intends to create a servitude that burdens his/her property
The owner enters into a contract or conveyance that satisfies the Statute of Frauds which creates the servitude (or the requirements for the creation of a servitude by estoppel, implication, necessity or prescription are met)
The servitude is not arbitrary, does not unreasonably restrain alienation, does not violate public policy, etc.
A servitude arises when:
