Restrictive Covenants

Question 1

What is a covenant

Answer 1

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

Unlike an easement (which is a property interest), a covenant is a contractual limitation or promise regarding the land.

Question 2

Negative v. Affirmative Covenant

Answer 2

Negative (restrictive) - a promise to refrain from doing something related to the land

Affirmative - a promise to do something related to the land

Question 3

covenant v. equitable servitude

Answer 3

For exam purposes, the difference is the relief the plaintiff seeks for violation.

If he plaintiff wants money damages, construe the promise as a covenant.

If the plaintiff wants an injunction, construe the promise as an equitable servitude.

Question 4

Steps for Determining if a covenant runs with the land

Answer 4

Always analyze the burden first because its harder for the burden to run. Second analyze whether the benefit runs.

Question 5

Requirements for Burden to Run

Answer 5

If the following requirements are met, any successor to the burdened estate will be bound by the covenant as if they agreed to it themselves. Requirement = WITH-N

W - Writing
I - Intent
T - Touch and Concern
H - Horizontal and Vertical Privity
N - Notice

Question 6

Writing Requirement (burden to run)

Answer 6

The original promise must have been in writing.

Question 7

Intent Requirement (burden to run)

Answer 7

the original covenanting parties must have intended that the covenant would run - meaning successors would be bound by the covenant

The intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself

Question 8

Touch and Concern Requirement (burden to run)

Answer 8

The promise must affect the parties legal relations as landowners and not simply members of a community at large.

Restrictive covenants touch and concern the land if they restrict the burdened parcel owner in her use of that parcel of land.

Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something that increases her obligation in connection with the land

Question 9

Horizontal Privity Requirement (burden to run)

Answer 9

horizontal privity refers to the nexus between the original promising parties.

It requires they be in succession of estate - meaning they were in a grantee-grantor, landlord-tenant, or mortgagee-mortgagor relationship when the covenant was created.

Horizontal privity is hard to establish

Question 10

Vertical Privity Requirement (burden to run)

Answer 10

vertical privity refers to the nexus between the successor in interest and the originally covenanting party. It simply requires some non-hostile nexus, such as contract, devise, or descent.

The only time vertical privity will be absent is when the successor acquired her interest through adverse possession.

Question 11

Notice Requirement (burden to run)

Answer 11

the successor must have had notice of the covenant when she took due to the recording statutes (actual, inquiry, or record notice at the time of purchase) \

Under the recording statutes, the successor will not be bound if she took without actual, inquiry, or record notice (BFP)

Question 12

Requirements for Benefit to Run

Answer 12

If the following requirements are met, a successor in interest may enforce a covenant. For the benefit to run - WIT-V:

W - Writing
I - Intent
T - Touch and Concern
V - Vertical Privity

NOTE - horizontal privity is not required for the benefit to run

Question 13

Touch and Concern for benefit

Answer 13

The benefit touches and concerns the land if the promised performance benefits the promisee and her successors in their use of enjoyment of the benefited land.

Question 14

Equitable Servitudes

Answer 14

An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land, unless the successor is a BFP

The equitable servitude is accompanied with injunctive relief

Question 15

Creation of an Equitable Servitude

Answer 15

Equitable servitudes are created by promises contained in a writing that satisfies the statute of frauds.

To Create - WITNES:

W - Writing (unless common scheme applies)
I - Intent - original parties intended to be enforceable against successors
T - Touch and Concern
N - Notice - subsequent purchasers burdens had notice
ES = Equitable servitude

No Privity (horizontal or vertical) is required

Question 16

Common Scheme Doctrine (highly tested)

Answer 16

A court will imply a reciprocal negative servitude upon all lots in a scheme when:

1) when the sales began, the subdivider had a general scheme of residential development which included the lot within the covenant; and

2) the lot holder of the lot without the covenant had notice of the promise contained in the prior deeds (actual, inquiry, or record)

Scheme - may be evidenced by a recorded plat, a general patter of restrictions, or oral representations to earlier buyers.

NOTE - if the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without the express covenants

Question 17

Equitable Defenses to Enforcement

Answer 17

A court will not enforce an equitable servitude if:

1) the neighborhood conditions have changed so significantly that enforcement would be inequitable. the changes conditions must be so pervasive that the entire area or subdivision has changed.

2) the person seeking enforcement is violating a similar restriction (unclean hands)

2) a benefited party acquiesced in a violation of the servitude by the burdened party

3) a benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived

4) the benefited party fails to bring an action within a reasonable time (laches)