RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES

Question 1

Restrictive Cov vs Equit Serv (remedy distinction)

Answer 1

money damages: COVENANT AT LAW

injunction: EQUITABLE SERVITUDE

Question 2

Restrictive covenant at law (4)

Answer 2

1. intent (intend to run w/ land)
2. notice (actual, constructive, inquiry)
3. touch and concern (makes land more valuable and useful)
4. privity (horizontal and vertical)

Question 3

Successor in Interest (Defendant requires both for BURDEN)

Answer 3

VERTICAL– those who subseq take prop subj to covenant, must take FULL ESTATE

HORIZONTAL– original parties to the promise

• must share int independent of covenant
• must be conveyance btwn original

Question 4

Successor in interest (Plaintiff requires one for BENEFIT)

Answer 4

VERTICAL– holder of any succeeding possessory estate may enforce benefit of promise as a covenant at law

Question 5

Covenant at law (BURDEN enforcement) (Successor in interest is D) (4)

Answer 5

1. intent
2. notice
3. touch and concern
4. BOTH privities

Question 6

Covenant at law (BENEFIT enforcement) (successor in interest is P) (3)

Answer 6

1. intent
2. touch and concern
3. vertical privity

Question 7

Equitable serv (enforcement of BURDEN to obtain INJUNCTION) (3)

Answer 7

1. intent
2. notice
3. touch and concern

Question 8

Equitable serv (enforcement of BENEFIT)(2)

Answer 8

1. intent

2. touch and concern

Question 9

Reciprocal Negative servitudes or “mutual right of enforcement” (subdivisions) (2)

Answer 9

1. intent (common building plan)

2. notice

Question 10

“dedication”

Answer 10

compel to use land as indicated by the reservation

ex. 10 acres reserved as park use, A sells to B with no restriction, city can compel to use this as park

Question 11

DEFENSES (to enforcement of covenant as an Equit Serv) (4)

Answer 11

1. UNCLEAN hands (P has made same use)
2. ACQUIESCENCE ( P let neighbors do same thing on their lots)
3. LACHES (P watched D build, only complained after)
4. ESTOPPEL (P represented that there were no problems with Ds plan to build)

Question 12

Termination of Covenants and Equit Serv (3)

Answer 12

1. deed of release
2. merger
3. changed conditions (if all lots in sub are affected then the use restriction will be eliminated)