Restrictions (Negative Easements/Restrictive Covenants)

Question 1

Negative Easement Requirements:

Answer 1

(a) intent
(b) touch and concern (sing at wedding =/= T/C)
(c) de facto notice (must record)
b) NE’s run w/ the land, unlike (general) covenants

Question 2

Negative Easement 4 types:

Answer 2

1) light
2) air
3) subjacent/lateral support 4) stream flow
- ->all appurtenant (Conservation Easement = in gross)

Question 3

Petersen:

Answer 3

unobstructed view as negative easement

(1) F: ∆s had to remove tv antennae’s because π retained NE in light, air, unobstructed view

Question 4

Conservation Easement:

Answer 4

NE in gross for pp of preserving scenic/historic areas and open space (landowner can’t diminish natural qualities); held by non-profit or gov (no dominant tenement)

Question 5

Blackman:

Answer 5

CE obtained before statutorily official because of gov’s express pp interest in conservation

(1) F: CE for historic district held by Nat’l Park Service; subsequent owner wanted to build onto house; VA hadn’t officially recognized NEs in grossvalid easement given state interest in conserving such place
(2) FT: CEs highly restrictive so there must be a strong pp interests in the land
(a) argument: CEs are not NEs since they strip landowners of almost all sticks in bundle of rights

Question 6

Restrictive Covenants

Answer 6

used to bind subsequent owners to terms of original K

(1) Most restrictive covs can be enforced as either ESs or running covs
(2) FT: NEs, ESs, and running covs should be combined into one legal interest = restrictive covs

Question 7

Equitable Servitudes

Answer 7

(equitable interest–>injunctive relief)

(i) usually not aff’tive
(ii) can’t be NE since NE has narrow scope, but is functionally equivalent expansion of NEs

Question 8

Equitable Servitudes Requirements

Answer 8

(a) Intention (that restriction would bind subsequent owners)
(b) Touch and Concern
(c) Notice
1. actual
2. record-notice: duty to inspect land records for restrictions
3. Inquiry notice: duty to inspect prop (i.e. if all house are white)

Question 9

Cheatham:

Answer 9

If restriction was intended to benefit/burden subsequent owners, subsequent owners not parties to original covenant can maintain a suit in equity to enforce covenant
(a) F: development plan; Rivermont created burden/benefit set-back restriction (20 ft from rd) on each prop; notice; π/∆ not original grantees–>enforceable against ∆

Question 10

Reimann:

Answer 10

π’s land (even though benefitted) was not intended beneficiary–>π couldn’t enforce covenant

(a) F: coventors sold lot to ∆ w/ restriction (burden); violated; 3p π not intended beneficiary–>unenforceable by π
(b) had this been part of a development plan, outcome might be different (implied intention)
(c) 3p beneficiary theory: if A and B enter in to K for benefit of C, C can enforce

Question 11

Implied reciprocal servitude

Answer 11

When developer sells to A (putting restriction on A’s land), developer puts same restriction on rest of his parcels, so when he sells those parcels to B,C,…they will have running burdens on their land for the benefit of A
(a) “implied 3p beneficiary” and “implied reciprocal servitudes” are gap-fillers when developer forgets to put covenants in all parcels in common development scheme