Restrictive Covenants

Question 1

Restrictive Covenant Definition

Answer 1

A restrictive covenant is a promise to refrain from doing something related to land.

Question 2

Affirmative Covenant Definition

Answer 2

An affirmative covenant is a promise to do something related to land.

Question 3

When to analyze as a Covenant vs. Equitable Servitude

Answer 3

If plaintiff wants MONEY damages: the promise is a covenant.

If plaintiff wants an INJUNCTION: the promise is an equitable servitude.

Question 4

Requirements for the “Burden” of a covenant to run with the land

Answer 4

Any successor in interest to the burdened estate will be bound by the covenant if (W I T H N):
 Writing
 Intent for the covenant to run
 Touch and concern the burdened land
 Horizontal and vertical privity
 Notice of the covenant when took

Question 5

Horizontal Privity

Answer 5

Nexus between the original promising parties (A and B)

Question 6

Vertical Privity

Answer 6

Nexus between the successor in interest (A-1) and the originally covenanting party (A).

Question 7

Requirements for the “Benefit” of a covenant to run with the land

Answer 7

Promisee’s successor may enforce the covenant if:
* Writing
* Intent
* Touch and concern
* Vertical privity

Question 8

Equitable Sevitudes Definition

Answer 8

An equitable servitude is a covenant that equity will enforce against the assignees of the burdened land who have notice of it.

The usual remedy is an injunction against violation of the covenant.

Question 9

Creation of an Equitable Servitude

Answer 9

Created by promises contained in a writing that satisfies the Statute of Frauds.

To create an equitable servitude (TWIN):
 Touch and concern
 Writing
 Intent (for promise to be enforceable against successors)
 Notice (of burdened land)

NOTE: No privity of estate is required for an ES to be enforceable.

Question 10

Implied Equitable Servitude/ “Common Scheme” Doctrine

Answer 10

An exception to the general requirement that the original promise be in writing- it can be contained in predecessor deeds

Elements of the Common Scheme Doctrine:
o Scheme of development (including D’s lot) when sales began
o D had notice of promise when they took possession

Question 11

Defenses to Enforcement of an Equitable Servitude

Answer 11

A court will not enforce an equitable servitude if:
- Neighborhood conditions have significantly changed to make enforcement inequitable.

• The person seeking enforcement is violating a similar restriction on his own land (unclean hands);
• A benefited party acquiesced in a violation of the servitude by a burdened party;
• A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel), or
• The benefited party fails to bring suit against the violator within a reasonable time (laches).

Question 12

Terminating an Equitable Servitude

Answer 12

An equitable servitude may be terminated by:
(1) written release from the benefit holders,
(2) merger of the benefited and burdened estates, or
(3) condemnation of the burdened property.