Restrictive Covenants

Question 1

what is a covenant?

Answer 1

a written promise to do or not do something related to land

Question 2

what is a restrictive (negative) covenant?

Answer 2

a promise to refrain from doing something related to land
*EXAMPLES = promise not to park somewhere, promise not to keep pets

Question 3

what is an affirmative covenant?

Answer 3

a promise to do something related to land
**EXAMPLE = promise to maintain shared fence

Question 4

how can you tell the difference between a covenant and an equitable servitude?

Answer 4

look at the REMEDY

Question 5

what remedy makes the promise a covenant?

Answer 5

money damages

Question 6

what remedy makes the promise an equitable servitude?

Answer 6

an injunction

Question 7

when is a covenant capable of binding successors?

Answer 7

when benefit and/or burden runs with the land

Question 8

what is required for a BURDEN to run with the land?

Answer 8

(WITHN)
Writing
Intent
Touch and concern
Horizontal AND vertical privity (BOTH)
Notice

Question 9

what is required for there to be a valid writing (for burden AND benefit to run)?

Answer 9

the original promise must have been in writing

Question 10

what is required for there to be valid intent (for burden to run)?

Answer 10

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

Question 11

what does “touch and concern” mean? (for burden to run)

Answer 11

the promise must affect the parties’ legal relations as landowners, NOT simply as members of the community at large

Question 12

when does a RESTRICTIVE covenant touch and concern the land?

Answer 12

if it restricts the burdened parcel owner in her use of that parcel of land

Question 13

when does an AFFIRMATIVE covenant touch and concern the land?

Answer 13

if it requires the holder of the servient land to do something that increases her obligations in connection with the land
*EXAMPLE = payment of HOA fees

Question 14

what is horizontal privity and what does it require? (for burden)

Answer 14

refers to the nexus between the ORIGINAL promising parties, and
it requires that they be in succession of estate when the covenant was created

Question 15

what does succession of estate mean? (horizontal privity)

Answer 15

parties shared some interest in the land INDEPENDENT OF the covenant when it was created (ie– grantor/grantee, mortgagor/mortgagee)

Question 16

what is the main reason why burdens will not run?

Answer 16

absence of horizontal privity (its presence is difficult to establish)

Question 17

what is vertical privity and what does it require? (for burden AND benefit)

Answer 17

refers to the nexus between the successor in interest and the OG covenanting party, and
it simply requires some non-hostile nexus (ie – contract, devise, descent)

Question 18

what is the only situation where vertical privity will be absent?

Answer 18

when the successor acquired her interest thru adverse possession

Question 19

when must the successor have notice of the promise (for burden to run)?

Answer 19

when she takes (because of recording statute notice requirements)

Question 20

what is required for a BENEFIT to run with the land?

Answer 20

(easier than for burdens) WITV…
Writing
Intent
Touch and concern
Vertical privity ONLY

Question 21

what intent is required for the BENEFIT to run?

Answer 21

OG covenanting parties must have intended that the benefit would run (meaning they intended that successors in interest to promisee would be able to enforce the covenant)

Question 22

when does a BENEFIT of a covenant touch and concern the land?

Answer 22

when the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land (affects them as landowners)

Question 23

in what 3 ways may a covenant/equitable servitude be terminated?

Answer 23

1) written release
2) merger of benefited and burdened estate
3) condemnation of burdened property

Question 24

what is an equitable servitude?

Answer 24

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 without notice of the covenant

Question 25

what is required to create an equitable servitude?

Answer 25

(WITNES)
Writing
Intent (for promise to be enforceable by and against successors)
Touch and concern (affects parties as landowners)
Notice
**ES = equitable servitude

Question 26

what kind of notice is required to create an equitable servitude?

Answer 26

subsequent purchasers of land burdened by the covenant must have actual, inquiry, or record notice of the covenant when they ACQUIRED the land
**NOTE = this is required even if buyer doesn’t seek protection of recording act (this rule is apart of the law of ES)

Question 27

are vertical or horizontal privity required for equitable servitudes?

Answer 27

NO

Question 28

what is effect of the common scheme doctrine? (implied ES)

Answer 28

a court will imply a reciprocal negative servitude (aka – implied ES) to hold the unrestricted lot holder to the promise (even in absence of writing)

Question 29

what are the two elements of the common scheme doctrine?

Answer 29

1) when sales BEGAN, subdivider had a general scheme of residential development which included the defendant’s lot, and
2) the defendant lot-holder had NOTICE of the promise contained in those prior deeds when it took

Question 30

what 3 types of notice are sufficient to satisfy the elements of the common scheme doctrine (ES)?

Answer 30

(AIR) defendant must have had either…
Actual notice
Inquiry notice
Record notice

Question 31

what is actual notice? (for purposes of common scheme doctrine)

Answer 31

defendant had literal knowledge of the promises contained in the deed

Question 32

what is inquiry notice (for purposes of common scheme doctrine)?

Answer 32

neighborhood seems to conform to the common restriction (ie – it’s the lay of the land/obvious)

Question 33

what is record notice (for purposes of common scheme doctrine)?

Answer 33

form of notice imputed to buyers on the basis of publicly recorded documents (ie – prior deed with covenant in grantee’s chain of title)

Question 34

if a common scheme/covenant arises AFTER some lots are sold, can that implied ES be enforced against those lots already sold?

Answer 34

NO (unless there’s an express covenant)

Question 35

what is the doctrine of changed circumstances?

Answer 35

a court will NOT enforce an ES if…
neighborhood conditions have changed SO SIGNIFICANTLY that enforcement would be inequitable
**NOTE = must be so pervasive that the entire area/subdivision has changed

Question 36

what is the doctrine of unclean hands?

Answer 36

court will NOT enforce an ES if person seeking enforcement is violation a similar restriction on his own land