Restrictive Covenants

Question 1

What are restrictive covenants?

Answer 1

Restricts someone else’s use in their land.

Since land, must meet SOF

Question 2

What are the two types of covenants?

Answer 2

Covenants at Law (Real covenant): Enforced with money damages.

Equitable Servitude: Enforced with an injunction

Question 3

When do you look to covenants?

Answer 3

• if suit is between original parties, look to contract law
• if there are successors on either side of the agreement, then look to covenant to determine whether benefit/burden/both run with the land

Question 4

What are the requirements for a burden to run with the land in a real covenant?

Answer 4

1. intent that it run with the land
2. notice of the covenant (actual, record, or inquiry) at the time interest in burdened land is acquired
3. covenant must touch and concern the land (must make the land more valuable or useful)
4. Horizontal and vertical privity

Question 5

What is horizontal privity?

Answer 5

Original parties

at time promisor entered into covenant with promisee, the two must have shared some interest in the land (e.g. grantor-grantee, tenant-landlord, mortgagor, mortgagee)

Question 6

What is vertical privity?

Answer 6

To be bound, successor in interest must hold entire interest held by promisor at time covenant was made.

Question 7

What are the requirements for a benefit to run with the land in a real covenant?

Answer 7

1. Intent
2. Vertical privity (but does not have to be entire estate)
3. Touch and concern

NO notice requirement like the burden

Question 8

What are the requirements for a burden to run with the land in an equitable servitude?

Answer 8

1: intent that it run with the land
2. notice of the covenant at time interest in burdened land is acquired
3. covenant must touch and concern land and not be a personal promise

NO privity required

Question 9

What are the requirements for a benefit to run with the land in an equitable servitude?

Answer 9

1. intent that it run with the land
2. covenant must touch and concern the land

NO Privity or notice requirement

Question 10

How can covenants in subdivisions be enforced if it is silent as to who holds its benefit?

Answer 10

Any neighbor in the subdivision if there was a general plan of development at the time he purchased the lot

Question 11

What are the two requirements to establish mutual benefit and burden in subdivision?

Answer 11

• intent to create servitude on all the land of the subdivision
• Notice (actual, record, inquiry)

Question 12

What are the three ways notice can be established for real covenants and equitable servitudes?

Answer 12

• actual notice
• record notice (restriction is in chain of title)
• inquiry notice (held to know everything a reasonable investigation would have revealed)

Question 13

What are equitable defenses to enforcement of equitable servitudes?

Answer 13

Unclean hands: violating a similar restriction on his own land

Acquiescence: benefitted party acquiesced in a violation of the servitude by one burdened party

Laches: burdened party doesn’t bring suit in reasonable time

Estoppel: benefitted party has acted in a way that a reasonable person would think the covenant was abandoned and the burdened party acts in reliance

Question 14

When can covenants and equitable servitudes be terminated?

Answer 14

1. release
2. unity of ownership
3. changed circumstances