Restrictive Covenants Flashcards
What is a covenant?
A promise to do or not to do something.
Is a covenant give any property right?
No it is a contractual limitation or promise regarding land.
What is a negative covenant?
Prevents you from doing something.
What is an affirmative covenant?
A promise to do something i.e. maintain a fence
What is the difference between a covenant and equitable servitude?
The remedy sought.
Money = Covenant Injunction = Equitable Servitude
What are the parties to a covenant?
The benefited property and the burdened property
What is horizontal privity?
A relationship between original grantor and grantee contractually. Nexus between original promising parties.
How does the burden of a covenant run?
Writing
Intent - parties agreed it would run with the land
Touch and Concern the land - must affect the parties’ relationship as landowners - covenant to pay $ not enough.
Horizontal and Vertical Privity
Notice A-1 must have notice of the promise when it took
What is vertical privity?
A non hostile nexus between A and A-1 or B and B-1 usually via contract, devise, or descent.
Usually only absent in adverse possession.
How does a benefit of a covenant run?
Writing
Intent
Touch and Concern
Vertical Privity (horizontal privity is not required)
What is required for an equitable servitude to bind succesors?
Writing
Intent
Touch and Concern
Notice
Equitable Servitude
Is privity required to bind successors to an equitable servitude?
No
How can a servitude be implied?
Common Scheme Doctrine - court will imply a reciprocal negative servitude to hold the unrestrict lot holder to the promise.
1) The subdivide must have had a scheme in a residential development
2) Defendant has notice via: Actual; Inquiry; or Record Notice (public records)
What is a defense to enforcement of equitable servitude?
1) Changed conditions - so pervasive that the entire area has changed. (mere change not enough)
