Restrictive Covenenants and Equitable Servitudes

Question 1

A Restrictive Covenant

Answer 1

A Restrictive Covenant gives the holder of the interest the right to restrict some 3rd party in the use of his land

Question 2

2 Categories of Restrictive Covenants

Answer 2

1. Covenants (promises) running with the land at law; and
2. Equitable Servitudes

Both involve a written promise and impose a restriction on the use of land

If P wants and injunction, the covenant is called an equitable servitude, but if the P wants damages its called a Covenant at Law

Question 3

Requirements to Enforce a Restricitve Covenant at Law

Answer 3

1. Intent
2. Notice
3. Touch & Concern the Land
4. Privity

Question 4

Intent required to enforce a restrictive covenant at law

Answer 4

Parties must intend the restriction run with the land

Question 5

Notice required to enforce a restrictive covenant at law

Answer 5

Notice to whom the enforcement is being sought against:

1. Actual notice
2. Constructive Notice
   
   • contained in duly recorded deed in the buyer’s direct chain of title
3. Inquiry Notice
   
   • physical inspection or looking at deeds recorded in chain of title

Question 6

Touch & Concerning the land required to enforce a restrictive covenant at law

Answer 6

• If performance of the covenant makes the land more valuable or more useful, the covenant touches and concerns the land.
• Covenants not to compete can satisfy this

Question 7

Privity required to enforce a restrictive covenant at law

Answer 7

Two kinds of privity

1. Horizontal
2. Vertical

To determine which one is present, must establish the benefit and the burden of the covenent

Question 8

How to identify a benefit or a burden to the land

Answer 8

• If the successor-in-interest is the plaintiff, then we know that person is trying to establish the benefit the runs to the plaintiff
• If the successor-in-interest is the defendant, then we know that the plaintiff is suing in order to establish that the burden of the covenant runs and binds with the defendant

Question 9

Burden - Successor-in-interest is the Defendent, Requires:

Answer 9

Requires Both:

1. Vertical Privity; and
2. Horizontal Privity

Question 10

Vertical Privity

Answer 10

• Those who subsequently obtain the property subject to the covenant
• These successors must take the entire estate held by their predecessor

Question 11

Horizontal Privity

Answer 11

• Refers to the original parties to the promise
• These two parties must share some interest in the land other than the covenant
  
  • There must be a conveyance between the original parties

Question 12

Benefit: Successor in interest is the Plaint - Requires:

Answer 12

Vertical Privity Only

Question 13

4 requirements to enforce the burden of a covenant at law:

Successor in Interest is the Defendent and the P must Establish:

Answer 13

1. Intent
2. Notice
3. Touch and Concern the Land
4. Privity
   
   1. Horizontal
   2. Vertical

Question 14

3 requirements to enforce the benefit of a covenant at law:

Successor in Interest is the Plaintiff and the P must Establish:

Answer 14

1. Intent
2. Touch and Concern the Land
3. Privity
   
   1. Vertical

Question 15

Equitable Servitudes - 3 requirements to enforce an injunction to enforce the Burden of the promise as an equitable servitude

Answer 15

1. Intent the restriction be enforceable by successors in interest
2. The restriction must touch and concern the land
3. Notice to the subsquent purchaser
   
   1. Actual
   2. Costructive; or
   3. Inquiry

No Privity Required

Question 16

The Doctrine to Enforce Subdivision Restrictions

Answer 16

Mutual Rights of Enforcement (Recipricol Negative Servitudes)

• this doctrine is relied upon to allow each lot owner in a subdivision to enforce a restriction on use against every other lot owner in the subdivision

Question 17

Requirements to Establish Mutual Rights of Enforcement

Answer 17

1. Intent to impose a servitude on ALL land in the subdivision
   
   • the pattern of the development reflects the intent each lot is to be resticted to residential use only
   • sometimes a subdivision plan/map will desdignate the entire bit to be for residential purposes
2. Notice
   
   1. Actual
   2. Contructive; or
   3. Inquiry

Question 18

Defenses to Enforcement of Covenant as an Equitable Servitude

Answer 18

1. Unclean Hands
2. Acquiesance
3. Laches
4. Estoppel

Question 19

Unclean Hands Defense to Enforcement of Covenant as an Equitable Servitude

Answer 19

Plaintiff has made the same use of her property

Question 20

Acquiesance Defense to Enforcement of Covenant as an Equitable Servitude

Answer 20

Plaintiff let other neighbors do the same thing on their property

Question 21

Laches Defense to Enforcement of Covenant as an Equitable Servitude

Answer 21

Plaintiff sat by and watched the thing happen, and only complained after it was finished

Question 22

Estoppel Defense to Enforcement of Covenant as an Equitable Servitude

Answer 22

Plaintiff Represented she had no problem with the defendant’s intended use of the land

Question 23

Ways to Terminate a Covenant and Servitude

Answer 23

1. Deed of Release
2. Merger - Unity of Ownership
3. Cahnged Conditions
   
   • if all the lots in the entire subdivision are effected, then the use restriction will be eliminated
   • all or nothing approach