Restrictive Covenants Flashcards
What is a covenant
the covenant is a written promise to do or not do something related to land.
it is a contractual limitation or promise regarding land.
Real covenants are normally found in deeds and when certain requirements are met they run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.
Negative Covenant
These are known as restrictive covenants. A restrictive covenant is a promise t refrain from doing something related to land.
Affirmative Covenants
The affirmative covenant is a promise to do something related to the land.
Covenant v. Equitable Servitude
How ill you know which analysis to apply?
On the basis the P seeks for remedies
IF the P wants money damages, you must construe the promise as a covenant. If the P wants an injunction, you must construe the promise as an equitable servitude.
Running with the Land
In covenant parlance, one tract is burdened by the promise and another is benefited.
When will the burden and/or benefit run to successors? It depends on whether the facts support the conclusion that the burden and the benefit run.
Analysis:
Does the burden of A’s promise to B run from A to A-1 (vertical privity)? -
Running with Land Analysis
Analysis:
Start with burden side first - it is harder for the burden to run than the benefit.
- Does the burden of A’s promise to B run from A to A-1?
- Does the benefit of A’s promise to B run from B to B-1?
Requirements for Burden to Run
For the requirements for a burden to run, remember: WITHN
Writing
Intent
Touch and Concern
Horizontal and Vertical Privity
Notice
Writing
the original promise (between A and B) must have been in writing
Intent
The original covenanting parties (A and B) must have intended that the covenant would run (meaning they intended that successors to the originally promising parties would be bound by the covenant).
Touch and Concern
The promise must affect the parties’ legal relations as landowners and not simply as members of the community at large.
Horizontal and Vertical Privity
Horizontal - refers o the nexus between the original promising parties (A and B); it requires that they be in succession of estate, meaning that they were in a grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship when the covenant was created. The two must have shared some interest in the land independent of the covenant. Horizontal privity is difficult to establish.
Vertical - refers to the nexus between the successor in interest (A-1) and the originally covenanting party (A). 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.
Notice
The successor must have had notice of the promise when she took
Requirements for Benefit to Run
Does the successor (B-1) have standing to enforce the covenant?
If following requirements are met, the promisee B’s successor in interest (B-1) may enforce the covenant.
Remember: WITV
Writing
Intent
Touch and Concern
Vertical Privity
NOTE: HORIZONTAL PRIVITY NOT REQUIRED FOR BENEFIT TO RUN
Vertical Privity
There must be a non-hostile nexus between the original promisee (B) and the successor in interest (B-1).
Specific situations Involving Real Covenants
Generally, promises to pay money to be used in connection with the land and covenants not to compete run with the land. Racially restrictive covenants are unenforceable.
Remedy - Damages
Covenants
A breach of a real covenant generally is remedied by an award of money damages, collectible from the D’s general assets. If an injunction is sought, the promise may be enforced as an equitable servitude.
Termination of Covenant
Written Release
Merger of the benefited and burdened estates, or
Condemnation of the burdened property
Equitable Servitudes
Equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser
Equitable Servitude is accompanied by Injunctive relief.
Creation - Equitable Servitude
ES are created by promises contained in a writing that satisfies the SOF. To create an ES that will bind successors, remember: WITNES
Writing
Intent
Touch and Concern
Notice
Equitable Servitude
NOTE: NO PRIVITY OF ESTATE IS REQUIRED
Writing - ES
generally, but not always, the original promise was in writing
Intent - ES
Original parties intended that het. promise would be enforceable by and against successors
Touch and Concern - ES
The promise affects the parties as landowners
Notice - ES
Subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when the acquired the land.
Implied ES - General or Common Scheme Doctrine
Common Scheme Doctrine - court will imply a reciprocal negative servitude to hold the unrestricted lot holder to he promise. Thus, if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.
Elements of Common Scheme Doctrine
Two elements of the general or common scheme doctrine:
- There was general scheme of development (including D’s lot) when sales began, and
- D had notice of promise when they took: actual, inquiry, or record
Equitable Defense to Enforcement
A court will not enforce an ES if:
a. The neighborhood conditions have changed (doctrine of changed conditions)
b. Unclean hands (person seeking enforcement is violating a similar restriction on his own land
c. A benefited party acquiesced in a violation of the servitude by a burdened party
d. A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel), or
e. The benefited party fails to bring suit against the violator within a reasonable time (laches)
Termination - ES
Written Release
Merger
Condemnation
