Restrictive Covenants Flashcards
what is a covenant?
a written promise to do or not do something related to land
what is a restrictive (negative) covenant?
a promise to refrain from doing something related to land
*EXAMPLES = promise not to park somewhere, promise not to keep pets
what is an affirmative covenant?
a promise to do something related to land
**EXAMPLE = promise to maintain shared fence
how can you tell the difference between a covenant and an equitable servitude?
look at the REMEDY
what remedy makes the promise a covenant?
money damages
what remedy makes the promise an equitable servitude?
an injunction
when is a covenant capable of binding successors?
when benefit and/or burden runs with the land
what is required for a BURDEN to run with the land?
(WITHN)
Writing
Intent
Touch and concern
Horizontal AND vertical privity (BOTH)
Notice
what is required for there to be a valid writing (for burden AND benefit to run)?
the original promise must have been in writing
what is required for there to be valid intent (for burden to run)?
the original covenanting parties must have intended that the burden would run (meaning that successors would be bound by the covenant)
what does “touch and concern” mean? (for burden to run)
the promise must affect the parties’ legal relations as landowners, NOT simply as members of the community at large
when does a RESTRICTIVE covenant touch and concern the land?
if it restricts the burdened parcel owner in her use of that parcel of land
when does an AFFIRMATIVE covenant touch and concern the land?
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
what is horizontal privity and what does it require? (for burden)
refers to the nexus between the ORIGINAL promising parties, and
it requires that they be in succession of estate when the covenant was created
what does succession of estate mean? (horizontal privity)
parties shared some interest in the land INDEPENDENT OF the covenant when it was created (ie– grantor/grantee, mortgagor/mortgagee)
what is the main reason why burdens will not run?
absence of horizontal privity (its presence is difficult to establish)
what is vertical privity and what does it require? (for burden AND benefit)
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)
what is the only situation where vertical privity will be absent?
when the successor acquired her interest thru adverse possession
when must the successor have notice of the promise (for burden to run)?
when she takes (because of recording statute notice requirements)
what is required for a BENEFIT to run with the land?
(easier than for burdens) WITV…
Writing
Intent
Touch and concern
Vertical privity ONLY
what intent is required for the BENEFIT to run?
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)
when does a BENEFIT of a covenant touch and concern the land?
when the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land (affects them as landowners)
in what 3 ways may a covenant/equitable servitude be terminated?
1) written release
2) merger of benefited and burdened estate
3) condemnation of burdened property
what is an equitable servitude?
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
what is required to create an equitable servitude?
(WITNES)
Writing
Intent (for promise to be enforceable by and against successors)
Touch and concern (affects parties as landowners)
Notice
**ES = equitable servitude
what kind of notice is required to create an equitable servitude?
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)
are vertical or horizontal privity required for equitable servitudes?
NO
what is effect of the common scheme doctrine? (implied ES)
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)
what are the two elements of the common scheme doctrine?
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
what 3 types of notice are sufficient to satisfy the elements of the common scheme doctrine (ES)?
(AIR) defendant must have had either…
Actual notice
Inquiry notice
Record notice
what is actual notice? (for purposes of common scheme doctrine)
defendant had literal knowledge of the promises contained in the deed
what is inquiry notice (for purposes of common scheme doctrine)?
neighborhood seems to conform to the common restriction (ie – it’s the lay of the land/obvious)
what is record notice (for purposes of common scheme doctrine)?
form of notice imputed to buyers on the basis of publicly recorded documents (ie – prior deed with covenant in grantee’s chain of title)
if a common scheme/covenant arises AFTER some lots are sold, can that implied ES be enforced against those lots already sold?
NO (unless there’s an express covenant)
what is the doctrine of changed circumstances?
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
what is the doctrine of unclean hands?
court will NOT enforce an ES if person seeking enforcement is violation a similar restriction on his own land
