Real Property- Equitable servitudes

Question 1

What are the two ways to bind a sucessor to an original party’s promise?

Answer 1

1) real convenants
2) equitable servitudes

Question 2

What is the difference between a real covenant and equitable servitude?

Answer 2

An equitable servitude has an easier standard to meet and the remedies differ. (for covenants-remedies is damages).
It doesn’t require privity

The remedies differ- injunctive relief,

Question 3

What are the requirements to bind a successor with an equitable servitude?

Answer 3

Must be in writing
Must have been intended to run with the land
Must touch and concern the land
Successor must have notice (actual, record or inquiry notice)

Different from covenants- Equitable servitude does not require privity.

Question 4

What is implied reciprocal servitude?

Answer 4

• It is a kind of equitable servitude that is implied and needs NOT be in writing.
• Usually comes up in planned communities (e.g., condo,subdivision);

It is also an exception to the equitable servitudes because it does not need to be in writing.

Question 5

How are implied reciprocal serviudes created?

Answer 5

Developer must intend to create a covenant (i.e., promise) on
all plots in the subdivision;
o Promises must be reciprocal (i.e., benefits and burdens each and
every parcel equally);
o Must be negative rather than positive (i.e., it must be a
restriction on the owner’s use);
o A successor must be on notice of the restriction (at least
inquiry notice); and
o Must be a common plan or scheme.

Question 6

How to prove the “common plan” requirement?

Answer 6

To prove there is a common plan, look for:
* A (recorded) map of the community showing the common scheme;
* Marketing or advertising of the community;
* Oral or written mention that the lots are burdened by common restrictions.

Question 7

how to terminate an implied reciprocal servitude?

Answer 7

Terminantes just as an easement.( merger, release, etc

Question 8

What is the changed circumstance doctrine?

Answer 8

• Look for situations where the restriction no longer makes sense
  due to drastic changes in the surrounding area since the restriction was put in place.
• Critical question: Does the property subject to the restriction still retain some benefit from the restriction?

Changes outside the community are not sufficient to terminate a condition.

Question 9

What defenses are available against equitable servitudes?

Answer 9

unclean hands (plaintiff not acting in good faith)
laches (unreasonable delayO

Question 10

What are common interest communities?

Answer 10

Real estate development in which individual units/lots are burdened by a covenant to pay
dues to an association;

Question 11

what are the duties of the association regarding common interest communities?

Answer 11

o The association:
 Services: Maintains grounds, provides facilities, etc.
 Enforces the covenants: The association is the “heavy” when your neighbor breaks the
rules.

Question 12

What are the three types of common interest communities?

Answer 12

Three types
o Owners’ Associations: Where property owners belong and pay
dues to an association or board;
o Condominiums: Where individual units are owned outright, but common areas are owned
collectively as tenants in common;
o Cooperatives: Property is owned by a corporation (made up of residents/shareholders) that
leases individual units to shareholders (residents).

Question 13

How does the association govern common interest communities?

Answer 13

• Governance
  A Declaration: The governing documents that outline the controlling covenants and
  restrictions, as well as the particulars about the association or board.

Note 43:Rules laid out in a declaration are valid so long as they are not illegal,
against public policy, or unconstitutional.

Note that this give broad powers

Question 14

What are the powers of the association?

Answer 14

The board has general powers to manage the common property and administer the
residents. For example:
 Assessments/fees;
 Manage and maintain the common property (e.g., clubhouse, gym);
 Enforce rules;
 Create new rules.

• Basic test: A new rule must be reasonably related to further a
  legitimate purpose of the association (think: rational
  basis test).

Question 15

What are the duties of the board members?

Answer 15

To the community: The association must deal fairly with
members of the community.
o Good faith;
o prudence;
o Ordinary care;
o Business Judgment Rule controls (the board is shielded from honest but mistaken business
decisions).

Question 16

What are fixtures?

Answer 16

Tangible personal property that isattached or affixed to real property in a
manner that is treated as part of the real property (e.g., a wall or a bridge; the materials used to make a wall or a bridge)

Question 17

Who can make improvements to the property?

Answer 17

o A fee simple owner of property is free to make improvements to the property, including
fixtures, subject to governmental land use regulations.

o Holders of a life estate or tenants, by contrast, are limited by the doctrine of
waste.

Question 18

Who can remove fixtures?

Answer 18

The buyer of real property is generally entitled to the chattel,
unless the seller reserves in the contract the right to keep the
chattel.

o Life tenants and tenants: The presumption is that they can remove fixtures unless doing so
would permanently damage the property

Question 19

Can trespassers remove fixtures?

Answer 19

Old rule: Trespassers could never remove any fixtures or improvements that they installed.

o New rule: Trespassers can remove an improvement, or at least recover the value added to
the property, so long as they acted in good faith.