Restrictive covenants Flashcards
what is a covenant and how does it differ from an easement
where are they found?
written promise to do or not to do something related to land (ex: maintain a fence)
differ from easement – not a grant of a property interest; it is a contractual limitation or promise regarding land
typically found in deeds
what are the types of covenants
Negative covenant
– restrictive covenant
– promise to refrain from doing something related to land [I promise not to build commercially]
Affirmative covenant
– promise to do something related to land [Ex: water the garden]
how to tell whether you are being asked about covenant vs equitable servitude on the exam:
Covenant = money damages
equitable servitude = injunction
what does it mean to run with the land?
A covenant that “runs with the land” is capable of binding future successors
what is required for the burden and benefit of a restrictive covenant to run/bind futures successors?
(1) examples of burden and benefit running
(2) what is required for a burden to run
(3) what is required for a benefit to run
EXAMPLES OF BURDEN/BENEFIT RUNNING
A promises B that A will not build for commercial purposes on A’s property.
A has the burdened land; B has the benefited land
A’s “burden” will “run” if A’s successor (i.e. the next person to possess A’s parcel) is required to refrain from commercial building as well / if B or B’s successor can force A’s successor to comply
REQUIRED FOR BURDEN TO RUN [WITHN]
(1) writing
Original promise (A and B) must be in writing
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(2) intent
Original covenanting parties must have intended that the covenant would bind succeeding parties
Infer from circumstances, or in the language [“A promises on behalf of successors and assigns”]
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(3) touch and concern
Promise must affect parties’ legal relations as landowners and not simply as members of the community at large
Restrictive covenants –– restrict burdened parcel owner in her use of that parcel of land
affirmative covenants – require holder of servant estate to do something that increases her obligations in connection with the land
Examples:
– covenants to pay money to be used in connection with the land, like HOA fees
– covenants not to compete
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(4) horizontal privity
Original promising parties (A and B) must be in succession of estate/shared some interest in the land independent of the covenant
Ex: grantor-grantee, landlord-tenant, mortgagor-mortgagee relationship
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(5) vertical privity
Successor and original promising party must have some non-hostile nexus [A and A1]
Ex: contract, devise, descent [NOT adverse possession]
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(6) notice
Successor must have had notice of the promise when she took, because under modern recording acts, to be bound by a covenant, a subsequent purchaser for value must have had actual, inquiry, or record notice of the covenant at the time of the purchase
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REQUIRED FOR BENEFIT TO RUN
(1) writing
original promise must have been in writing
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(2) intent
Original parties must have intended that successors in interest to the promisee would be able to enforce the covenant
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(3) touch and concern
Benefit of a covenant touches and concerns the land if the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land
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(4) vertical privity
non-hostile nexus between original promisee and successor in interest
what to know about racially restrictive covenants
unenforceable
remedy for breach of a real covenant
money damages, collectible from the D’s general assets
how to terminate a real covenant
(1) written release
(2) merger of benefited and burdened estates
or
(3) condemnation of the burdened property
how to create an equitable servitude
[WITNES]
(1) writing
original promise is in writing so that it satisfies SoF [exception is common scheme doctrine]
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(2) intent
original parties intended that the promise would be enforceable by and against successors
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(3) touch and concern the land
promise affects the parties as landowners
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(4) Notice
subsequent purchasers of land BURDENED by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land [notice not required for benefit to run]
(Note: This rule is part of the law of equitable servitudes, and exists apart from the recording acts, so notice is required to bind a subsequent purchaser regardless of whether they seek the protection of a recording act. On the exam, though, a recording act will usually be involved.)
nonpurchasers are bound whether or not they had notice [donees]
[ES for equitable servitude]
what is the implied equitable servitude you are likely to be tested on
the general or common scheme doctrine
what is the general or common scheme doctrine
what are the elements of the doctrine
WHAT IT IS
Under this doctrine, court will imply a reciprocal negative servitude [implied equitable servitude] to hold the unrestricted lot holder to the promise
Ex:
developer divides land and some deeds contain negative covenants while others do not … if the elements are met, the negative covenants will be binding on all parcels as part of a common scheme of development
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ELEMENTS
(1) general scheme of residential development – when sales began, subdivider had a general scheme of residential development which included the defendant’s lot
[evidence of scheme = recorded plat, a general pattern of restrictions, oral representations to earlier buyers]
NOTE: scheme has to arrive BEFORE the lots are sold without express covenants, otherwise, no common scheme [if Lots 1-5 are sold without a restrictive covenant and lots 6-50 contain one, the covenant cannot be enforced against 1-5]
(2) defendant lot-holder had notice of the promise of the prior deeds when it took [AIR]
Actual notice — D had literal knowledge of promises contained in other deeds
Inquiry notice – neighborhood seems to conform to the common restriction [“lay of the land”]
Record notice – the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents [prior deed with covenant in grantee’s chain of title]
Equitable defenses to enforcement
(1) neighborhood conditions have changed so significantly that enforcement will be inequitable
[The changed circum- stances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area or subdivision has changed. What’s never good enough here is piecemeal change or mere pockets of limited change]
(2) person seeking enforcement is violating a similar restriction on his own land [unclean hands]
(3) a benefited party acquiesced in a violation of the servitude by a burdened party
(4) a benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel)
(5) benefited party fails to bring suit against violator within a reasonable time (laches)
how to terminate an equitable servitude
(1) written release from benefit holders
(2) merger of benefited and burdened estates
or
(3) condemnation of the burdened property
