How do they function? Is there any similarities to another servitude?
Serve same function as covenants running with the land.
Binds the first and subsequent owners to some burden on use of land
How do they arise?
When a covenant is unavailable/unenforceable.
Often b/c vertical privity is absent due to the deed not reflecting the burden on the title.
Equitable Circumstances
- Some kind of promise/agreement the court thinks should be enforced to do equity/justice.
- Real covenant lacks an element but should be enforced because of some knowledge/should have known about the burden.
Citizens: Rule
If restrictions recorded before the sale, later purchaser knowing of restriction is deemed to agree to them.
Reciprocal Negative Easement (Sanborn)
If the owner of two or more lots sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and during the period of restraint the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold.
Key Elements
- A Common Plan
2. Notice of the Restrictions
Key Element: A Common Plan
- Plat of subdivision
2. Same restrictions on multiple lots
Key Element: Notice Types
- Actual
- Recorded
- Inquiry
Types of Notice: Actual
The person actually knows the fact
Types of Notice: Recorded
- Restriction is in public records.
- Courts presume parties know everything in the public record.
- Form of constructive knowledge.
Types of Notice: Inquiry
Facts suggest:
- Need to inquire if there are restrictions
- Courts presume parties know everything a reasonable inquiry would reveal.
- Another form of constructive knowledge.
