Restrictive Convenants and Equitable Servitudes

Question 1

Restrictive Covenant

Answer 1

A real covenant is a written promise to do or not to do something on the land.

Two types:

1. Covenants running with the land at law
2. Equitable servitudes

Question 2

Four Reqs to Enforce a Restrictive Covenant AT LAW

Answer 2

1. Intent (that the cov. run with the land)
2. Notice (Actual, constructive, inquiry)
3. Touch and Concern (performance makes land more valuable or useful)
4. Privity
   - - If successor-in-interest is DEFENDANT: BOTH vertical and horizontal privity
   - - If successor-in-interest is PLAINTIFF, Vertical Privity ONLY

Question 3

Horizontal Privity

Answer 3

Privity between the original parties to the interest

Question 4

Vertical Privity

Answer 4

Refers to those who subsequently take the estate subject to the covenant. These successors must take the FULL ESTATE held by their predecessor

Question 5

Burden of Covenant Running with the Land

Answer 5

The burden of the covenant will run with the land if:

1. The covenanting parties INTENDED that successors in interest be bound by the covenant;
2. The successor in interest has NOTICE of the covenant;
3. There is HORIZONTAL privity between the ORIGINAL covenanting parties;
4. There is vertical privity between the covenantor and her successor in interest; and
5. The covenant touches and concerns the land.

Question 6

Benefit of Covenant Running with the Land

Answer 6

The benefit of the covenant will run to successors in interest if:

1. The covenanting parties INTENDED that successors in interest be benefitted by the covenant;
2. There is VERTICAL privity between the covenantee and her successor in interest; and
3. The covenant TOUCHES and CONCERNS the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land).

Question 7

Equitable Servitude

Answer 7

An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it.

Question 8

Equitable Servitude Reqs

Answer 8

Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, reciprocal negative servitudes may be implied if:

1. There is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant); and
2. The grantee had actual, record, or inquiry notice of the covenant.