Restrictive Covenants

Question 1

What is a covenant

Answer 1

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.

Question 2

Negative Covenant

Answer 2

These are known as restrictive covenants. A restrictive covenant is a promise t refrain from doing something related to land.

Question 3

Affirmative Covenants

Answer 3

The affirmative covenant is a promise to do something related to the land.

Question 4

Covenant v. Equitable Servitude

Answer 4

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.

Question 5

Running with the Land

Answer 5

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)? -

Question 6

Running with Land Analysis

Answer 6

Analysis:

Start with burden side first - it is harder for the burden to run than the benefit.

1. Does the burden of A’s promise to B run from A to A-1?
2. Does the benefit of A’s promise to B run from B to B-1?

Question 7

Requirements for Burden to Run

Answer 7

For the requirements for a burden to run, remember: WITHN

Writing
Intent
Touch and Concern
Horizontal and Vertical Privity
Notice

Question 8

Writing

Answer 8

the original promise (between A and B) must have been in writing

Question 9

Intent

Answer 9

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).

Question 10

Touch and Concern

Answer 10

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

Question 11

Horizontal and Vertical Privity

Answer 11

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.

Question 12

Notice

Answer 12

The successor must have had notice of the promise when she took

Question 13

Requirements for Benefit to Run

Answer 13

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

Question 14

Vertical Privity

Answer 14

There must be a non-hostile nexus between the original promisee (B) and the successor in interest (B-1).

Question 15

Specific situations Involving Real Covenants

Answer 15

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.

Question 16

Remedy - Damages
Covenants

Answer 16

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.

Question 17

Termination of Covenant

Answer 17

Written Release
Merger of the benefited and burdened estates, or
Condemnation of the burdened property

Question 18

Equitable Servitudes

Answer 18

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.

Question 19

Creation - Equitable Servitude

Answer 19

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

Question 20

Writing - ES

Answer 20

generally, but not always, the original promise was in writing

Question 21

Intent - ES

Answer 21

Original parties intended that het. promise would be enforceable by and against successors

Question 22

Touch and Concern - ES

Answer 22

The promise affects the parties as landowners

Question 23

Notice - ES

Answer 23

Subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when the acquired the land.

Question 24

Implied ES - General or Common Scheme Doctrine

Answer 24

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.

Question 25

Elements of Common Scheme Doctrine

Answer 25

Two elements of the general or common scheme doctrine:

1. There was general scheme of development (including D’s lot) when sales began, and
2. D had notice of promise when they took: actual, inquiry, or record

Question 26

Equitable Defense to Enforcement

Answer 26

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)

Question 27

Termination - ES

Answer 27

Written Release
Merger
Condemnation