VI. Restrictive Covenants & Equitable Servitudes

Question 1

Restrictive Covenants Generally

Answer 1

• Restrictive covenant gives teh holder interest the RIGHT to restrict some third party in the use of his or her land
  *

Question 2

Covenants versus Equitable Servitudes

Answer 2

Both are written promises that restrict land use–differ in tehroy of enforcement

1. Covenants running with the land at law enforced using law/money damages
2. Equitable Servitudes enforced using equity/injunctive relief

Question 3

Four Requirements to Enforce a Restrictive Covenant

Answer 3

1. INTENT: Parties must intend that the restriction RUNS WITH THE LAND
2. NOTICE: to the person against whom enforcement is sought
   
   • actual
   • constructive–notice that is imparted b/c the restriction is contained in a deed that has been duly recorded in buyer’s direct chain of title
   • Inquiry notice: physical insecpetion of property or by the deeded recored in direct chain of title
3. TOUCH AND CONCERN LAND: makes the land more valuable or more useful
   
   • non-competes do touch and concern the land
4. Privity

Question 4

Vertical Prviity

Answer 4

• those who subsequently obtain the property subject to the covenant. Must take the full estate held by their predecessor
• Holders of any succeeding possessory estate may enforce the benefit of the promise as a covenant at law

Question 5

Horizontal Privity

Answer 5

• refers to the original parties to the promise
• share some interest in the land beyond the covenant
• usually, on the bar exam, must show a conveyance of hte property between the original parties

Question 6

Privity: Who is successory in interest

Answer 6

• Must look to see who is the successor of interest to see what privities must apply
  
  • Successor in interest is plaintiff, they’re trying to have the benefit of covenant runs to the plainitff
  • SUccessor in interest is defendant, then we know they’re trying to establish that the burden runs to and binds the defendant
    *

Question 7

SUccessor in Interest is Defendant/Burden being enforced against them

Answer 7

• Both Vertical and Horizontal Privity required

Question 8

Successor in interest is Plaintiff/Trying to enforce the benefit

Answer 8

Vertical Privity is the only requirement

Question 9

FOUR Requirements to Enforce the BURDEN of a COVENANT at LAW: Successor-in-Interest is DEFENDANT

Answer 9

1. Intnent
2. Notice
3. TOuch and Concern
4. Privity
   
   1. Horizontal
   2. Vertical

Question 10

REQUIREMENTS to Enforce the BENEFIT of a COVENANT at LAW: Successor-in-Interest is Plaintiff

Answer 10

1. Intent
2. Touch and Concern
3. Privity
   
   1. Vertical privity ONLY

Question 11

Requirements to obtain an INJUNCTION to Enforce the BURDEN of the Promise as an Equitable Servitude:

Answer 11

1. INTENT that the restriction be enforceable by Successors-in-Interest
2. The restriction must TOUCH and CONCERN the land
3. NOTICE to Subsequent Purchaser

PRivity Unnecesssary

Question 12

to enforce the BENEFIT of a covenant (promise) as an EQUITABLE SERVITUDE

Answer 12

1. Intent
2. TOuch and Concern

Notice and Privity Unncessary

Question 13

Enforcement of Subdivision Restrictions: Reciprocal Servitudes or Mutual Rights of Enforcement

Answer 13

• This doctrine is relied on to allow EACH LOT OWNER in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision.

Question 14

Requirements to Establish a Mutual Right of Enforcement

Answer 14

1. AN INTENT TO IMPOSE A SERVITUDE ON ALL LAND IN SUBDIVISION:
   
   • requisite intent reflected in common building plan
   • reflects intent to use land as residential
   • that almost all were marked this way, shows intent that each were given benefit of restriction, and they each then get right to enforce
2. NOTICE

Question 15

Dedication versus the law of covenants

Answer 15

• where government enforces a building plan that leaves room for a park when developer tries to develop

Question 16

Defenses to Enforcement of Covenant as an Equitable Servitude

Answer 16

1. UNCLEAN HANDS: P made similar use of her property
2. ACQUIESCENCE: P let other neighboring landowners do the same thing on their lots
3. LACHES: P sat while defendant built the office building (or other item) and compalined after the project was complete
4. ESTOPPEL: P represented that she had no problems with defenant’s plans to make the proposed ue of the property

Question 17

Termination of Covenants and Servitudes

Answer 17

1. Deed of Release
2. Merger/Unity of Ownership
3. Changed Conditions
   
   1. If all the lots in the entire subdivision are affected, then the use restriction will be eliminated. Remember – This is an all or nothing proposition!