Real Property- Real Covenants Flashcards
What is a real covenant?
A promise concerning the use of the land that runs to successors to the promise.
What does running with the land means?
It is when an agreement between the original parties binds the successors of the land.
What does it means to have the benefit of the covenant or the burden of the covenant?
The benefit of the covenant is the ability to enforce the covenant.
o The burden of the covenant is being subject to it (i.e., bound
by it).
What are the five requirements for real covenants?
1) In writing
2) Intent of the parties for it to run with the land
3) Touch and concern the land
4)Notice of the covenant
5) privity between the parties
Why does real covenants must be in writing?
A real covenant is subject to the statute of fraud; therefore, it must be in writing.
They are also subject to recording acts.
Explain the need for intent as the second element of the real covenant.
To bind a successor, the original parties must intend for the covenant to run with the land.
Exam Tip 12: Look for express language such as “and his heirs and assigns” to
prove the requisite intent
What does it means to touch and concern the land?
A real covenant must touch and concern the land in order to run.
* The benefit or burden of the covenant must affect both parties as owners of the land.
In which ways does the touch an concern element shows in covenants?
o Negative covenant: A restriction on use will usually touch and concern because they restrict what you can do with your land.
Watch out for promises that are unenforceable such as discriminatory covenants, as these do not touch and concern.
o Affirmative covenant: A covenant to pay money (e.g., homeowners’ association fees).
Traditionally, such fees did not touch and concern, but the modern trend is to say that these fees do touch and concern.
What kind of notice is required to run a real covenant? E
Either
actual notice or constructive notice (i.e., record)
- inquiry notice may also suffice for an equitable servitude.
What is the first kind of privity? (fifth element)
To run the burden to a successor, the original parties to the promise must have been in horizontal privity.
* Horizontal privity refers to the privity of estate, where the estate and covenant are contained in the same instrument (e.g., the deed).
o Helpful Hint: Look for a transfer of property between the original parties that contains a
covenant in it. (Key for horizontal privity: Look for the original parties to the agreement.)
Note 42:You do not need horizontal privity to run a benefit.
What is the second kind of privity?
- Vertical privity refers to the relationship between the original party to the agreement and his/her successor to the property.
- To run the burden of the covenant to the successor, the successor must take the original party’s entire interest. This is called strict vertical privity.
- To run the benefit of the covenant to the successor, the successor need only take an interest that is carved out of the original party’s estate. This is called relaxed
vertical privity.
What are the steps to determine privity?
Exam Tip 13:Ask yourself a series of questions:
(i) Identify whether you are running the benefit or the burden;
(ii) If it is the benefit, you need relaxed vertical privity and you don’t care about
horizontal privity;
(iii) If it is the burden, you need horizontal privity and strict vertical privity.
What is the remedy for breach of real covenant?
Damages
