Week 5 Easements and Covenants

Question 1

Lot 1 and Lot 2 – initially A owns both lots. A lives on lot one and A decides to transfer lot 2 to B.
when A transfer’s lot 2 to B A says, “B I want you to only use this property for single family residential purposes only.”

While A is willing to no longer be the owner of lot 2 A is living there. A wants those who are on lot 2 to also use it as a residence because no one wants to live by a factory.

Single Family Residential only it can be used in very ugly ways.

Specifically, as methods of racial, ethnic and socioeconomic discrimination. Assume that A doesn’t want to live by a factory.

This agreement between A and B that lot 2 is only going to be used single family residential only is perfectly fine.

What will happen that will complicate things is that B will transfer Lot 2 to C and A will transfer lot 1 in some or fashion to D and then C is going to open a factory.

Now D is mad because D is living next to a factory.

Real covenants and equitable servitudes. Idea is when can D sue C fand get money damages for the fact that C has opened a factory in violation of a real covenant?

Or Equitable Servitude standpoint when can D sue C to get an injunction to shut the factory down?

!!

Answer 1

!!

Question 2

Real Covenant (Money Damages)

how many elements do you have to prove?

Answer 2

5

Question 3

Essay with this sort of analysis DO _____ ___________ FIRST. Harder and more points there and by the time you get to equitable servitudes you will know if they have been met or not because the elements are the same.

Answer 3

REAL COVENANTS

Question 4

Real covenants require _______.

Equitable servitudes don’t as a general rule.

Answer 4

privity

Question 5

You can say Written, Notice, Intent, Touch and Concern all met please see above. Yes they can get an injunction. Easy to do because analysis has been done in real covenant discussion. !!

Answer 5

!!

Question 6

Lot 1 and Lot 2 – initially A owns both lots. A lives on lot one and A decides to transfer lot 2 to B.
when A transfer’s lot 2 to B A says, “B I want you to only use this property for single family residential purposes only.”

Lot 2 is the _________ side. _______ because you can only use it as a residence. Single family residential only. Can’t use it however you want that is why lot 2 is _________.

Lot 1 is _________ because it knows that it will be next to a single-family residential only parcel.

Answer 6

burdened

burdened

burdened

benefited

Question 7

DON’T GET BENEFIT AND BURDEN CONFUSED. Test for vertical privity on the benefited side and a test for vertical privity on the burdened side. !!

Answer 7

!!

Question 8

If A has the ability, if we can prove all of the elements for real covenants and equitable servitudes, A has the ability to force C to shut down the factory or to pay A money for breach of the covenant.

Worst case – we have D down here. Sometimes it is just A suing C.

!!

Answer 8

!!

Question 9

________ _________ is something you would have to show between A and D and something you would have to show between B and C. test for vertical privity being established is different on each side.

Answer 9

Vertical Privity

Question 10

In order for VP to run between B and C they have to satisfy the “_____ _______”

Answer 10

same test

Question 11

______ ______ means that B has to give the same estate in land that B has to C.

If B owns FSA B should sell to C with FSA.

IF B is renting from A. What sort of transfer to C would transfer the rest of B’s rights– Assignment would transfer the rest of B’s rights.

Answer 11

same test

Question 12

Benefit side for the benefit to run from A to D – vertical privity must exist, and the “____ ____” must be met.

Answer 12

some test

Question 13

A has to give some of A’s rights to D. Not all but some.

Could A rent to D? Yes, Could A give D a life estate? Yes.

Could A sell to D in FSA? Yes, because the test for Vertical Privity on the benefit side simply says that A has to give ____ or ____but at least some of A’s rights to D.

Answer 13

some or all

Question 14

For D to be able to sue C because C opened a factory, we have to be able to prove ______ ________ on both sides the benefit side and the burdened side.

Answer 14

vertical privity

Question 15

Privity between A and B. If A and B don’t have ______ _______ than D cannot sue C and get money damages because we won’t meet the elements for a real covenant

Answer 15

horizontal privity

Question 16

2 ways for A and B to have horizontal privity:
1.
2.

Answer 16

LL/Tenant Relationship

Grantor/Grantee Relationship

Question 17

2 ways for A and B to have horizontal privity: LL/Tenant Relationship or a Grantor/Grantee Relationship.

Scenario that wouldn’t work between A and B-

Answer 17

neighbors and they just agree that nobody is going to open a factory. That is not enforceable as a real covenant because there is no horizontal privity. If D tires to sue C and the agreement between A and B was just between neighbors, it is not going to work.

Question 18

Elements for a real covenant – get you money damages if breached you have to prove that it is:
1. ?
2.
3.
4.
5.

Answer 18

1. WRITTEN

(if it says that it is written into the deed which often it might be or written into the lease that would satisfy the 1st prong)

Question 19

Elements for a real covenant – get you money damages if breached you have to prove that it is:
1.
2. ?
3.
4.
5.

Answer 19

2. INTENT that the covenant run with the land.

When you do your analysis and get to prong 2, you have to talk about intent,

Question 20

Prove intent by saying it is _________.

Answer 20

presumed

Question 21

Elements for a real covenant – get you money damages if breached you have to prove that it is:
1.
2.
3. ?
4.
5.

Answer 21

3. NOTICE to the burdened party.

Question 22

Originally burdened party was B and then B conveyed to C – how does C have notice?

Answer 22

If C expressly assumed the covenants in the lease, then C knows about the single family residential only.

or

In a deed which has been recorded.

Question 23

Elements for a real covenant – get you money damages if breached you have to prove that it is:
1.
2.
3.
4. ?
5.

Answer 23

4. PRIVITY

Question 24

4. Privity includes

1.
2.
on the burdened side.

on the benefit side.

Answer 24

1. horizontal
2. vertical
3. vertical

Question 25

Elements for a real covenant – get you money damages if breached you have to prove that it is:
1.
2.
3.
4.
5. ?

Answer 25

5. COVENANT HAS TO TOUCH AND CONCERN THE LAND.

Covenants that touch and concern the land are related to a physical aspect of the land, or the covenant to pay money or dealing with services utilities, things of that nature.

Question 26

4. PRIVITY – privity includes horizontal, vertical, on the burdened side, and vertical on the benefit side. Privity is a bear.)
   Need all of the privity’s if D was trying to sue C and get money damages. !!

Answer 26

!!

Question 27

2 best ways to prove notice –

Answer 27

in a deed which has been recorded or in a lease which C has expressly assumed

Question 28

Single family residential touches and concerns the land because it is relating to the ________ ________ of the land. How the land is going to be used. Most things will touch and concern the land.

Answer 28

physical aspects

Question 29

Equitable servitude – if you want to prove that there has been breach of an Equitable Servitude, if successful, you can get an ____________.

Answer 29

injunction

Question 30

Unless just an astronomical amount of money you would want an ___________ If they give you money the factory will still be there. I want the injunction because it shuts it down. It is easier to prove breach of an equitable servitude than breach of a real covenant.

Answer 30

injunction

Question 31

Equitable Servitude all you need is:
1.
2.
3.
4.

Answer 31

1. Written (exception to that)
2. Intent that it run with the land
3. notice to the burdened party
4. touch and concern the land

Question 32

Do the real covenant analysis first because you will have done all of these things. Equitable Servitude does not require you to prove privity. Easier to get an ___________ than ________ ________because Privity is a pain.

Answer 32

injunction

money damages