Real Property

Question 1

Elements to Bind Successors to Equitable Servitude

Answer 1

1. Promise between original parties must be in WRITING;
2. The promise must have been INTENDED to run with the land,
3. The promise must TOUCH AND CONCERN the land,
4. The successor to be bound must have had NOTICE of the promise (actual, constructive, or inquiry)

Question 2

Elements to create an Implied Equitable Servitude (think planned communities)

Answer 2

1. DEVELOPER of a COMMON PLAN/SCHEME must
2. INTEND to create promises on
3. ALL PLOTS in the subdivision
4. Promises must be RECIPROCAL - benefit and burden each plot
5. Promises must RESTRICT uses rather than grant uses
6. The successor to be bound must have had NOTICE

Question 3

Elements to Run Burden of Real Covenant

1. WRITING
2. INTENT
3. TOUCH AND CONCERN
4. NOTICE
5. HORIZONTAL PRIVITY
6. VERTICAL PRIVITY

Answer 3

1. WRITING - covenants are subject to SOF
2. INTENT - Original parties must intend for the promise to run with their properties and bind their successors in interest
3. TOUCH AND CONCERN - the promise must affect both parties’ ownership interests in their properties
4. NOTICE - successor to be bound must have had actual or constructive notice; inquiry notice will work to bind under an equitable servitude theory
5. HORIZONTAL PRIVITY - approx. original parties were in a grantor/grantee relationship whereby they were parties to an instrument concerning the promise and their estates (ex. covenant contained in a deed from OP1 to OP2)
6. VERTICAL PRIVITY - the successor to be bound took OP1/OP2’s ENTIRE estate–look to what OP1/OP2 gave to successor–it must their entire interest

Question 4

Elements to Run Benefit of Real Covenant

1. WRITING
2. INTENT
3. TOUCH AND CONCERN
4. NOTICE
5. HORIZONTAL PRIVITY
6. VERTICAL PRIVITY

Answer 4

1. WRITING - covenants are subject to SOF
2. INTENT - Original parties must intend for the promise to run with their properties and bind their successors in interest
3. TOUCH AND CONCERN - the promise must affect both parties’ ownership interests in their properties
4. NOTICE - successor to be bound must have had actual or constructive notice; inquiry notice will work to bind under an equitable servitude theory
5. HORIZONTAL PRIVITY - approx. original parties were in a grantor/grantee relationship whereby they were parties to an instrument concerning the promise and their estates (ex. covenant contained in a deed from OP1 to OP2)
6. VERTICAL PRIVITY - the successor to be bound took an estate carved out of the estates of OP1/OP2. Need not be the whole estate.

Question 5

Elements for a Use Variance Petition

1. UNNECESSARY BURDEN/HARDSHIP to owner,
2. UNIQUE CIRCUMSTANCES of property,
3. NOT OWNER CREATED,
4. IN KEEPING WITH PURPOSE OF ORDINANCE,
5. NO HARM TO THE GENERAL WELFARE

Answer 5

(1) forcing landowner to comply with the zoning code would create UNNECESSARY BURDEN/hardship;

(2) the hardship arises from UNIQUE CIRCUMSTANCES of the property;

(3) the OWNER DID NOT CREATE the hardship;

(4) the variance would be IN KEEPING WITH PURPOSE WITH ORDINANCE; and

(5) the variance will cause NO HARM TO THE GENERAL WELFARE.

Question 6

Easement by Implication

Answer 6

An easement by implication may arise when the owner of two parcels of land previously used one parcel to benefit the other and subsequently transferred one of the parcels.