Restrictive Covenants

Question 1

Covenant

Answer 1

A promise to do or not do something.

Can be negative/restrictive (refrain from doing something)

Or affirmative (do something related to land)

Question 2

Covenant vs Equitable Servitude

Answer 2

Distinguish based on remedy sought:

Money damages: Covenant at law

Injunction: Equitable servitude

Question 3

Covenant terminology

Answer 3

One tract is BURDENED by the promise

Another is BENEFITED

Question 4

In run with the land analysis, do burden or benefit side first?

Answer 4

BURDEN b/c it’s harder for burdens to run than for benefits.

Question 5

Requirements for Burden to Run

Answer 5

WITHN

1) Writing (original promise)
2) Intent (for burden to run)
3) Touch and Concern (the land)
4) Horizontal and Vertical Privity
5) Notice (A1 must have notice at time she took from A)

Question 6

Intent (Burden Run)

Answer 6

Intent by original parties that it would run. Courts are generous in finding this.

Question 7

Touch and Concern (Burden Run)

Answer 7

Of and pertaining the involved land. Affects the parties in their legal relationships AS LAND OWNERS.

Question 8

Horizontal and Vertical Privity (Burden Run)

Answer 8

The nexus between parties. Need both.

Horizontal privity is between A and B.
Vertical is from A and A1.

Question 9

Horizontal Privity

Answer 9

Nexus between A and B. Requires that they be in SUCCESSION OF ESTATE.
—–meaning they were in a grantor-grantee, or landlord-tenant, or mortgagor-mortgagee relationship when convenat was created.
—–in other words, must have some shared interest in the land independent of the covenant.

DIFFICULT TO ESTABLISH. Usually the sticking point in burden run.

BAR SCENARIO: Usually one party sold the land to the other on the condition of the covenant.

Question 10

Vertical Privity

Answer 10

A to A1 OR B to B1. Simply requires some NON-HOSTILE NEXUS, such as K, devise, or descent.

Only time it’s absent is when successor aquired interest through AP.

Question 11

Notice (Burden Run)

Answer 11

A1 must have had notice of the promise when she took the property.

Notice have actual, inquiry, or record notice of covenant at the time of purchase.

Question 12

Requirements for Benefit to Run

Answer 12

WITV

Writing
Intent
Touch and Concern
Vertical Privity

Question 13

Equitable Servitude

Answer 13

A Promise that equity will enforce against successors of burdened land (regardless of whether it runs with land at law)

(injunctive relief)

Question 14

Termination of Covenenant AND equitable servitudes

Answer 14

1) written release
2) Merged of estates
3) Condemnation

Question 15

Creation of Equitable Servitudes

Answer 15

WITNES

Writing (generally)
Intent (that it’s enforcable against successors)
Touch and Concern (the land)
Notice (of successors when they took)
ES (Equitable servitude)

NOTE: No privity required

Question 16

Common Scheme Docrtine (equitable servitude) (Implied Eqiutable Servitude)

Answer 16

Court will imply a RECIPROCAL NEGATIVVE SERVITUDE (implied equitable servitude) to hold the unrestricted lot holder to the promise.

Example: A subdivides land. Some deeds contain restrictive covenants while others don’t. The restrictive covenants will be binding on ALL parcels provided t here was a COMMON SCHEME of development and notice of the covenants.

Question 17

Elements of the Common Scheme Doctrine

Answer 17

1) When the sales began, the subdivider (A) had a GENERAL SCHEME OF RESIDENTIAL DEVELOPMENT which included the D’s lot; AND
—–evidence: recorded platt; general patterns; early oral representations
—–If scheme arises AFTER some lots are sold, no implied servitude can arise

2) D had notice of the promise contained in those prior deeds when it took

Question 18

Forms of Notice (Common scheme doctrine)

Answer 18

AIR

Actual notice (literal knowledge)

Inquiry Notice (neighborhood seemed to conform to the common resetriction)

Record notice (basis of publicly recorded documents, particularly the deed)

Question 19

Equiteable Defenses to Enforcment (of equitable servitude)

Answer 19

Main one: Neighborhood conditions have changed so significantly that enforcment would be inequitable.

Must be so pervasive that hte entire area or subdivision has changed.

Not adequate: Piecemeal change or mere pockets of limited change.