Restrictive Covenants Flashcards
Covenant - generally
The covenant is a written promise to do or not do something related to land. For example, to maintain a fence, or to not build a multifamily dwelling. It is unlike the easement because it is not the grant of a property interest. Instead, 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 the subsequent owners main forest or be burdened by the covenants. 
Covenants - Negative covenants
Covenant can be negative. These are known as restrictive covenants. A restrictive covenant is a promise to refrain from doing something related to land. Some examples of restrictive covenants are not posting ads on the front lawn, no pets in a condo, no basketball hoops in the driveway.not building for commercial purposes is the most common restrictive covenant.
Covenants - Affirmative covenants
Covenants can be affirmative: the affirmative covenant is a promise to do something related to land. Some examples are maintaining a common fence or watering a shared garden.
Covenants - Covenants vs equitable servitude
On the exam, the same set of facts could give rise to either a covenant or an equitable servitude. How will you know which analysis to apply? If the plaintiff wants money damages, can strew the promise as a covenant. If the plaintiff wants an injunction, you must constr the promise as an equitable servitude.
Covenants - Running with the land
In covenant parlance, one tract is burdened by the promise, and the other is benefited. Our key question in this area is figuring out when a covenant will run with the land. In other words, when is the covenant capable of binding successors? When will the burden and or benefit run to the successors?
Covenants - Requirements for burden to run - 5 requirements
If the following requirements are met, any success or in interest to the burden estate will be bound by the covenant as if they themselves had expressly agreed to it. The requirements for the burden of covenant to run:
Writing
Intent that the burden will run
Touch and concern the land
Horizontal and vertical privity
Notice to successor 
Covenants - Requirements for burden to run - writing
The original promise must have been in writing
Covenants - Requirements for burden to run - intent
The original covenant parties must have intended that the covenant would run. Meaning they intended the successors to the original, promising parties, be bound by the covenant. This intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the convey itself.courts are generous in finding the requisite intent.
Covenants - Requirements for burden to run - touch and concern
The promise must affect the parties, legal relation as landowners, and not simply as members of the community at large. Restrictive covenants, touch and concern the land if they restrict the burden parcel owner in her use of that parcel of land. Affirmative covenants, touch and concern the land if they require the holder of the servant state to do something that increases her obligation and connection with the land. Covenants to pay money to be used in connection with the land like homeowners association fees and covenants not to complete do touch and concern the land.
Covenants - Requirements for burden to run - horizontal privity
Horizontal privity refers to the nexus between the original promising parties. 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. In other words, at the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant. Horizontal privity is difficult to establish. It’s absence is the reason why many burdens will not run
Covenants - Requirements for burden to run - vertical privity
Vertical privity refers to the nexus between the successor in interest and the originally covenanting party. It simply requires some non-hostile nexus, such as a contract, device, or descent. The only time vertical privity will be absent is where the successor acquired her interest through adverse possession. 
Covenants - Requirements for burden to run - notice
The successor must have had notice of the promise when she took. Because under a modern recording acts, to be bound by a covenant, a subsequent purchase or for value must’ve had actual, inquiry, or record notice of the covenant at the time of purchase.
Covenants - Requirements for the benefit to run - 4 requirements
Basically what you’re asking here is whether the successor has standing to enforce the covenant. The following requirements must be met in order for the successor to enforce the covenant. For the benefit of covenant to run:
Writing
Intent
Touch and concern
Vertical privity only
Covenants - Requirements for the benefit to run - writing
The original promise must’ve been in writing
Covenants - Requirements for the benefit to run - intent
The originally covenanting party must have intended that the benefit would run, meaning they intended that successors in interest to the promisee would be able to enforce the covenant
Covenants - Requirements for the benefit to run - touch and concern
The benefit of a covenant touches and concerns the land if the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land. In other words, the promise must affect the parties as landowners. 
Covenants - Requirements for the benefit to run - vertical privity
There must be a non-hostile nexus between the original promises and the successor in interest.
Covenants - Specific situations involving real covenants - generally
Generally, promises to pay money to be used in connection with the land like homeowners association, fees, and covenants not to compete run with the land. Racially restrictive covenants are unenforceable.
Covenants - remedy
A breach of a real covenant generally is remedied by an award of money, damages, collectible from the defendants general assets. If an injunction is sought, the promise may be enforced as an equitable servitude. 
Covenants - termination
As with all other nonpossessory interests, a covenant may be terminated by: a written release, the merger of the benefited and burdened estates, or the condemnation of the burdened property. 
Equitable servitudes - generally
An equitable servitude is a promise that equity will enforce against successors of the burden land, regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser, meaning a subsequent purchaser for value without notice of the covenant.
Equitable servitudes - creation: 5 requirements
Generally, as with real covenants, equitable servitude are created by promises contained in a writing that satisfies the statute of frauds. To create an equitable servitude that will bind successors:
Writing 
Intent
Touch and concern
Notice
ES
Equitable servitudes - creation - writing
Generally, but not always, the original promise was in writing. The common scheme doctrine is an exception to this requirement.
Equitable servitudes - creation - intent
The original parties intended that the promise would be enforceable by an against successors
Equitable servitudes - creation - touch and conern
The promise affects the parties as landowners 
Equitable servitudes - creation - notice
Subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land.
This rule is part of the law of equitable servitude, and exists apart from the recording act, so notices required to bind a subsequent purchaser, regardless of whether they seek the protection of a recording act. On the exam, though, a recording act will usually be involved. Note also that in most states, successors of burden land, who are not purchases (donees), are bound by the covenant, whether or not they had notice. 
Equitable servitudes - creation - ES………
For equatable servitudes..
Contrast ES with real covenants
Remember that while vertical and horizontal privity of estate are required for real covenants, no privity of a state is required for equitable servitude to be enforceable by and against assignees
Implied equitable servitude - common scheme doctrine - rule
This issue will likely be on the exam. Think of it as an exception to the general requirement that the original promised being in writing.
Under the common scheme doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted holder to the promise. Reciprocal negative servitude means and implied equitable servitude. Thus, if a developer subdivide land, and some deeds contain restrictive covenants, while others do not, the restrictive covenants will bind. All parcels provided there was a common scheme of development and notice of the covenants. 
Implied equitable servitude - common scheme doctrine - elements
The two elements of the general or common scheme doctrine:
When the sales began, the subdivider had a general scheme of residential development, which included the defendants law. The scheme may be evidenced by a recorded plot, a general pattern of restrictions, or oral representations to early buyers
And
The defendant lot holder had notice of the promise contained in those prior deeds when it took.
Implied equitable servitude - common scheme doctrine - elements - notice
Three forms of notice:
Actual notice: the defendant had literal knowledge of the promises contained in the prior deeds
Inquiry notice: the neighborhood seems to conform to the common restriction
Record notice: the form of notice, sometimes imputed to buyers on the basis of publicly recorded documents.
Equitable servitudes - Equitable defenses to enforcement
A court will not enforce an equitable servitude if
The neighborhood conditions have changed so significantly that enforcement would be an equitable. “ the doctrine of changed conditions.” The circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area or subdivision has changed. What’s never good enough is piecemeal changed or mere pockets of limited change.
The person seeking enforcement is violating a similar restriction on his own land (unclean hands)
A benefited party acquiesced in a violation of the servitude by a burden party
Benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel)
Or
The party fails to bring suit against the violator with an a reasonable time (laches)
Equitable servitudes - termination
Like other nonpossessory interests, and equitable servitude may be extinguished by: written release from the benefit holders, merger of the benefited and burdened estates, or condemnation of the burdened property.
Equitable servitude - common scheme doctrine - scheme arising after some lots are sold
If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold with without express covenants. So if one through five are sold without restrictive covenants and the deeds to lots six through 50 contain one, the covenant cannot be enforced as a servitude against the owners of lots one through five.
