Restrictive covenants

Question 1

what is a covenant

Answer 1

written promise to do or not do something related to land

Question 2

diff btwn covenant and easement

Answer 2

covenant is NOT an interest in land but rather a contractual limitation or promise regarding the land

an easement is a nonpossessory interest of use/enjoyment of land

• remember covenant = contract*
• easement = inter_e_st*

Question 3

negative covenant

Answer 3

aka restrictive covenant

promise to refrain from doing something related to land

ex: promise to not have pets, not post “for sale”sign, not build for commercial purposes, park car inside etc

Question 4

affirmative covenants

Answer 4

promise to do something related to land

ex: promise to water shared garden

Question 5

WITHN

requirements for burdened covenant to run with land

Answer 5

1. Writing - original promise btwn A and B
2. Intent - original parties must have intended that covenant would run
3. Touch and concern
4. Horizontal and vertical privity are present
5. Notice

Question 6

WITV

requirements for benefited covenant to run with land

Answer 6

1. Writing
2. Intent
3. Touch and concern
4. Vertical privity

Question 7

remedy for breach of real covenant

Answer 7

money damages

Question 8

list (3)

termination of covenant

Answer 8

1. written release
2. merger of benefited and burdened parcel
3. condemnation of burdened property

Question 9

what is an equitable servitude

Answer 9

ES is like a covenant in that there is a promise to do or not do something

promise regarding the land is enforceable against successors of the burdened land regardless of whether the ES runs with the land UNLESS successor is a BFP without notice

Question 10

relief for equitable servitude?

Answer 10

injunctive relief

Question 11

WITNES

how are equitable servitudes created

Answer 11

1. Writing - satisfy SOF
2. Intent
3. Touch and concern
4. Notice “air” - subsequent purchasers of burdened land had actual, inquiry, or record notice AND exists APART from recording acts → notice required regardless of whether they seek protection of recording act
5. Equitable Servitude

***no privity of estate required to make the ES enforceable by and against the assignees ***

Question 12

bar fav

Implied equitable servitude (IES)- common scheme doctrine

Answer 12

courts imply a reciprocal negative servitude (IES) to hold unrestricted lot owner to the promise

meaning that if developer subdivides land and some deeds have restrictive covenants, they will be biding on all parcels PROVIDED that there was a common scheme of development and notice of covenants

Question 13

elements of common scheme doctrine

Answer 13

1. at sale, subdivider had general scheme of residential development including D’s lot
2. D lot-holder had notice of promise contained in the prior deeds
   
   1. notice - AIR
      
      1. Actual notice
      2. Inquiry notice
      3. Record notice

Question 14

list (5); enula

defense to equitable servitude

Answer 14

1. estoppel
2. neighborhood conditions have change significantly
3. unclean hands - person seeking enforcement is violating a _similar_ restriction on his own
4. laches - benefited party fails to bring suit against violator within reasonable time
5. benefited party acquiesced/allowed a violation of servitude by a burdened party

Question 15

easement vs. covenant vs. ES

Answer 15

easement: right to use/enjoy the other’s land; right to cross over neighbor’s land

covenant: right to insist (K) that the other do or not do a land related duty; right that neighbor shares cost of maintaining a fence

equitable servitude right to control how the other may use the land; right that a neighbor may not use land for commercial purposes

Question 16

Vertical privity refers to the relationship between

Answer 16

An original party to a real covenant and his successor in interest

Question 17

Horizontal privity refers to the relationship between

Answer 17

the original parties to a real covenant