Real Servitudes (Covenants)

Question 1

Covenant Running With the Land

Answer 1

1. Must be in writing (recorded)
2. Must “touch and concern” the land
3. Intent of the original parties for the covenant to run with the land (benefit and burdened) (I.e., restrictive negative reciprocal easement)
4. Privity of Estate
5. Notice (actual, constructive, or inquiry)

Question 2

Implied Reciproacy Common Scheme

Answer 2

1. Land originally united by a common owner
2. Restrictions Contained in SOME but not ALL conveyances
3. Intent of a common scheme created by the restrictions (impacting each property)
4. Notice: actual, constructive, or inquiry

Question 3

Enforcement of a Covenant

Answer 3

Where there is a proven intent for there to be a common scheme, all owners within the common scheme have the right to enforce its restrictions (even when the lands are not adjoined)

Question 4

Expanding Restrictions

Answer 4

Absent other language, amendments will not be interpreted as being more restrictive than the original deed

Question 5

Deed Amendments

Answer 5

Deed Amendments will not apply to an owner who:
1. relied on restrictions at the time of title; and
2/ they relied on and took upon a newly prohibited used; and
3. the enforcement would result in an unjust injury

Question 6

Prevention of Restriction Enforcement when . . .

Answer 6

1. Substantial violations within the area would suggest covenant abandonment / not raise an inquiry
2. Where there has been such a change that it is no longer possible to secure a substantial degree of the benefits sought to be realized by the covenant
3. Where the harm from the granting will be greater than the benefit gained thereby