Restrictive Covenants Flashcards
When does a covenant bind successor grantees?
if it runs with the land
When does a burden of a covenant run with the land?
(1) the original promise must have been in writing; (2) the original parties intended for the covenant to bund successors; (3) the covenant touches and concerns the land (i.e. restricts the use of the land in some way); (4) there is horizontal and vertical privity; and (5) the successor had notice of the covenant when she took (notice can be actual, inquiry, or record)
How is horizontal privity satisfied?
the original promising parties must have been in privity of estate (grantor-grantee; tenant-landlord)
How is vertical privity satisfied?
The original party’s successor must have obtained the land in a non-hostile way (i.e. conveyance, device, contract); only not met if the successor obtained the land through adverse possession
When does a benefit of a covenant run with the land?
(1) it is in writing; (2) there is intent; (3) it touches and concerns the land; and (4) there is vertical privity
What is an equitable servitude?
promise enforced in equity against successors of burdened land, regardless of whether it runs with the land unless the successor is a BFP
When is the equitable servitude analysis implicated?
when the party is seeking injunctive relief as oppose to money damages
What is required to create an equitable servitude to bind successors?
(1) Writing; (2) Intent that promise be enforceable by and against successors; (3) The promise touches and concerns land; (4) Notice (successor isn’t a BFP w/o actual, inquiry, or record notice)
When will an equitable servitude be an implied without a writing?
Under the common scheme doctrine: (1) subdivision of land (2) with some deeds containing a restrictive covenant and others not; (3) restrictive covenant will be bonded if there is a common development scheme and notice of the covenant
What is another term for for an implied equitable servitude?
Reciprocal negative servitude
What are defenses to enforcing an equitable servitude?
(1) unclean hands (person seeking enforcement is in violation); (2) change in neighborhood conditions; (3) estoppel (the benefited party acts in a way consistent with abandonment/ waiver of the covenant); (4) benefited party doesn’t sue within a reasonable time
an equitable servitude is binding on successors if:
(1) it is in writing; (2) in runs with the land; (3) Successors have notice; and (4) intent by parties that the servitude be enforceable on successors
