Restrictive Covenants Flashcards
Covenant - Basics
- a written promise to do or not do something related to land (ex: maintain a fence, or not build a multifamily dwelling)
- doesn’t grant a property interest (differentiates it from easement)
-> instead, it’s a contractual promise or limitation regarding land
Negative Covenants
- aka restrictive covenants
- promise to refrain from doing something related to land
Affirmative Covenants
- promise to do something related to land
Covenant vs. Equitable Servitude
- essentially, covenants are a remedy at law, vs equitable servitude is an equitable remedy
-> on exam, if pl wants money damages, construe as a covenant
-> if pl wants an injunction, construe as an equitable servitude
Running with the Land
- one tract is burdened by covenant + other benefited
- the question of whether the covenant runs with the land addresses whether or not it will bind successors
Requirements for Burden to Run
- means any successor in interest to burdened estate will be bound by the covenant as though they themselves agreed to it
WITHN:
Writing - original promise must’ve been in writing
Intent
Touch and Concern
Horizontal and vertical privity
Notice
Requirement for Burden to Run - Intent
- original parties must’ve intended for it to run
- usually found in language of conveyance, but can also be inferred from circumstances surrounding creation of covenant
- courts are generous in finding requisite intent
Requirement for Burden to Run - Touch and Concern
- promise must affect parties’ legal relations as landowners, not simply the community at large
- restrictive covenants touch + concern the land if restrict burdened landowner in use of particular parcel
- affirmative ones touch + concern if require holder of servient estate to do something that increases obligations in connection w/ the land
-covenants to pay $ used in connection w/ land + covenants not to compete do touch and concern the land
Horizontal Privity
- refers to nexus between original + promising parties
- requires that they be in succession of estate -> means the original covenanting parties need to have been grantor-grantee, landlord-tenant, or mortgagor-mortgagee when the covenant was created
- difficult to establish -> prevents many burdens from running
Vertical Privity
- refers to nexus between successor in interest + originally covenanting party
- needs non-hostile connection (contract, devise, or descent)
- only absent when successor acquired interest through adverse possession
Covenants - Notice Requirement
- to be bound by a covenant, subsequent purchaser for value must have had actual, inquiry or record notice of the covenant at time of purchase
Requirements for Benefit to Run
WITV - if all met, successor of the benefitting party may enforce the covenant:
Writing
Intent
Touch and concern
Vertical privity
- note that it’s easier for the benefit to run than the burden b/c doesn’t require horizontal privity
-> beneficiary successor can enforce the promise against the original promisor, but not their successor whenever horizontal privity is lacking
Remedy for Breach of Covenant
- breach of real covenant generally remedied through money damages (vs. equitable servitude if seeking injunction)
Covenant - Termination
May be terminated by:
- written release
- merger of benefitted and burdened estates
- condemnation of the burdened property
Equitable Servitude
- 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 (subsequent purchaser for value w/o notice of the covenant)
Equitable Servitude - Creation
- generally created by promises contained in a writing that satisfies SOF
Conditions for Equitable Servitude to Bind Successors
WITNES:
Writing - generally, though not always, in writing
Intent
Touch and concern
Notice (benefitted landowner doesn’t need this though)
ES - equitable servitudes
- NO PRIVITY OF ESTATE REQUIRED
Donees
- in most states, successors of burdened land who aren’t purchasers are bound by a covenant or es whether or not they had notice
General Scheme Doctrine
- implied equitable servitudes
- court will imply reciprocal negative servitude to hold the unrestricted lot holder to the promise
- if a developr subdivides land, + some deeds contain restrictive covenants but others don’t, restrictive parcels binding on all parcels provided that there was a common scheme of development and notice of the covenants
Common Scheme Doctrine - Elements
Two elements -when sales began,
A) subdivider had general scheme of residential development which included the defendant’s lot (the scheme may be evidenced by a record plat, general pattern restrictions, or oral representations to early buyers) AND
B) defendant lot-holder had notice of the promise contained in those prior deeds when it took (AIR- actual, inquir, or record notice)
Equitable Servitudes - Equitable Defenses to Enforcement
- changed conditions
- person seeking enforcement is violating a similar restriction on own land (unclean hands)
- benefitted party acquiesced in such a way that reasonable person would believe the covenant abandoned or waived (estoppel)
- laches - benefited party failed to bring suit against violator within reasonable time
Equitable Servitudes - Changed Conditions
- neighborhood conditions have changed so significantly that enforcement would be inequitable
- changed conditions must be so pervasive that the entire area or subdivision has changed
-> piecemeal change or pockets of limited change do NOT suffice
Equitable Servitudes - Termination
- may be extinguished by:
1) written release from benefit holders
2) merger of benefitted and burdened estates
3) condemnation of burdened property
