Rights in Land - Real Covenants and Equitable Servitudes Flashcards
As to the “touch and concern” element for restrictive covenants to run with land, does a no-compete covenant qualify?
YES.
As to the notice requirement for a restrictive covenant to run with the land, if the land passes through will and no consideration paid, is notice required?
No, notice is only required if the successor is a bona fide purchaser. If inheriting the land, the covenant runs with it despite no notice to successor.
What is a real covenant?
A real covenant is a promise concerning the use of the land that runs to successors of the promise. It typically requires the holder to either do something OR refrain from doing something to the land.
Benefit v. burden of covenant
The benefit of the covenant is the ability to enforce the covenant. The burden of the covenant is being subject to it or bound by it.
In order for a benefit to run to successors…
In order for a benefit to run to successors, the following four elements must be present:
1. Writing. The covenant must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).
- Intent. The original parties must have intended for the covenant to run with the land.
3.Touch and Concern. The covenant must touch and concern the land (i.e., the benefit of the covenant must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).
- Relaxed Vertical Privity. The successor need only take an interest that is carved out of the original party’s estate (i.e., the successor can take less than the original party’s entire interest in the property – e.g., the successor takes a life estate from a fee simple).
In order for a burden to run to successors…
In order for a burden to run to successors, the following six elements must be present:
- Writing. The covenant must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).
- Intent. The original parties must have intended for the covenant to run with the land.
- Touch and Concern. The covenant must touch and concern the land (i.e., the burden of the covenant must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).
- Strict Vertical Privity. The successor must take the original party’s entire
interest. - Horizontal Privity. The instrument used in the conveyance of the property between the original parties must contain the estate and the covenant (e.g., the deed contains the covenant).
- Notice. The new owner must have notice of the covenant. Notice may be either actual or constructive (i.e., record notice). Inquiry notice may suffice for equitable servitudes (e.g., an inspection of the land would reveal the servitude).
What is an equitable servitude? How is it different from a covenant?
An equitable servitude operates like a real covenant with easier requirements.
The main difference between a real covenant and an equitable servitude is in the remedy.
The remedy for a breach of a real covenant is money damages – the remedy for a breach of an equitable servitude is injunctive relief.
What are the requirements for an equitable servitude?
For equitable servitudes, there is NO privity requirement. In order to bind a successor, the following four elements must be present:
- Writing. The servitude must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).
- Intent. The original parties must have intended for the servitude to run with the land.
- Touch and Concern. The servitude must touch and concern the land (i.e., the servitude must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).
- Notice. The new owner must have notice of the servitude. Notice may be either actual, constructive, or inquiry.
Where do implied reciprocal servitudes arise?
Implied reciprocal servitudes arise in planned subdivisions.
Req’s for implied reciprocal servitude?
Most jurisdictions impose the following requirements to enforce an implied reciprocal servitude:
- There must be intent to create a servitude on all plots (i.e., a common scheme);
- The servitude must be negative (i.e., a promise to refrain from doing something);
AND
- The party against whom enforcement of the servitude is sought must have actual, constructive, or inquiry notice.
Can Implied reciprocal servitudes be implied
ummm, yeah. it’s in the name bruh.
They are implied from the common scheme and a writing is NOT required for its creation.
A buys land from B with option for B to use land up to 30 days. B overstays then refuses to leave; what is A’s best argument?
Best argument is that B is a licensee with a contractual right to use the land owned by A. A can revoke at any time.
Tenant at sufferance is not the best option because they did not agree on a tenant-landlord relationship that can be ended at any time by either party. So when you picked this answer choice you were trippppiiiiinnnnnn. obviously licensee best.
As to the “touch and concern” element of equitable servitude and covenant, what is required?
the servitude must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land.
eg, non-compete covenant would qualify; but a restriction that can only use power company approved by subdivision would not apply and would not be binding/enforceable.
If making improvements and neighbor says you’re violating their right to be shored up by your land, what must they prove?
That subsidence would have occurred even if their (the neighbor’s) lot was in its natural condition.
Note: if neighbor notified you that hey we may have a problem here, you may still be liable for negligence. not necesssarily but maybe.
Even if the plaintiff’s land would not have subsided in its natural state, the plaintiff can always assert a claim for negligence against the defendant. This can include, among other things, the arguments that the defendant did not properly investigate the probable impact of her excavation; that she failed to shore up the plaintiff’s building when the defendant was made aware of the reasonably foreseeable subsidence; and that the defendant did not follow sound engineering practices
