Restrictive Covenants

Question 1

Covenant

Answer 1

A written promise to do or not to do something related to land
-Contractual limitation or promise regarding land
-Real covenants found in deeds may “run with the land”
-Monetary damages for breach of a real covenant
-Terminated by (1) written release; (2) merger of estates; or (3) condemnation of burdened property

Question 2

Negative (restrictive) covenant

Answer 2

A promise to refrain from doing something related to land
-i.e., not to have pets or build for commercial purposes

Question 3

Affirmative covenant

Answer 3

A promise to do something related to land
-i.e., to maintain a common fence or garden

Question 4

Covenant vs. equitable servitude

Answer 4

Distinguish from covenants based on remedy sought:
-Monetary damages = covenant
-Injunction = equitable servitude

Question 5

Running with the land

Answer 5

Is a covenant capable of binding successors?
-Its more difficult for a burden to run than for a benefit to run (no notice or horizontal privity requirements)

Question 6

Requirement for burden to run

Answer 6

Writing
-Original promise must have been in writing

Intent
-Original covenanting parties must have intended that successors would be bound by the covenant

Touch and concern
-Promise affects the parties as landowners, not just as members of the community
-Covenants that restrict the use of the parcel or increase obligations in connection with the land

Horizontal and vertical privity
-Horizontal privity (difficult to establish): when two parties share some relationship related to the land other than the covenant (i.e., landlord-tenant, grantor-grantee, or mortagor-mortgagee)
-Vertical privity: when a successor has a non-hostile relationship with a original covenanting party (i.e., contract, descent, devise, but not adverse possession)

Notice
-Actual, inquiry, or record notice

Question 7

Requirement for benefit to run

Answer 7

Writing
-Original promise must have been in writing

Intent
-Original covenanting parties must have intended that successors would be bound by the covenant

Touch and concern
-Promise affects the parties as landowners, not just as members of the community
-Covenants that restrict the use of the parcel or increase obligations in connection with the land

-Vertical privity: when a successor has a non-hostile relationship with a original covenanting party (i.e., contract, descent, devise, but not adverse possession)

Question 8

Equitable servitude

Answer 8

A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land unless successor is BFP
-Remedy is injunction
-Purpose is to avoid draconian rules on covenants running with the land
-No privity requirement
-Terminated by (1) written release; (2) merger of estates; or (3) condemnation of burdened property

Requirements:
1. Writing (unless common scheme doctrine applies)
2. Intent
3. Touch and concern
4. Notice (AIR)
5. Equitable servitude

Question 9

Common scheme doctrine

Answer 9

Exception to writing requirement for equitable servitude

Elements:
1. When sales began, the subdivider had a general scheme of residential development which included D’s lot; and
-Doctrine does not apply if scheme arises after sales begin
2. D had notice of the promise contained in those prior deeds when it took
-Actual (literal knowledge), inquiry notice (neighborhood seems to conform with the common restriction, or record notice (prior deed with covenant in grantee’s chain of title)

Scheme may be evidenced by a recorded plat, general pattern of restrictions, or oral representations to early buyers

Question 10

Equitable defenses to common scheme doctrine

Answer 10

Neighborhood conditions have changed so significantly that enforcement would be inequitable