Covenants and Servitudes

Question 1

Requirements for BURDEN of Covenant to Run

Answer 1

1. INTENT
2. NOTICE- actual, inquiry, record
3. HORIZONTAL PRIVITY- at time promisor entered into covenant with promisee, the two must have shared a common interest (Grantor-grantee, landlord-tenant, mortgagee-mortagor)
4. VERTICAL PRIVITY- Sucessor must take full estate held by predecessor
5. TOUCH AND CONCERN- if they restrict the holder of the servant estate in the use of that parcel or they require him to do something (affirmative covenant)

Question 2

Requirements for BENEFIT Covenant to Run

Answer 2

1. INTENT - Surrounding evidence as well as language original parties intend that successors be bound.
2. VERTICAL PRIVITY - Runs to the assignees of the original estate of any lesser estate. ANY succeeding posessory estate may enforce the benefit.
3. Touch and Concern the Land

Question 3

Requirements to Enforce Burden of Equitable Servitude

Answer 3

1. Intent
2. Notice (Actual, constructive, inquiry)
3. Touches and Concerns

Question 4

Requirement to Enforce Benefit of Equitable Servitude

Answer 4

1. Intent

2. Touch and Concern

Question 5

Requirement for Negative Equitable Servitudes/ Mutual Rights of Enforcement

Answer 5

1. An intent to impose a servitude (restriction on use) on all land in subdivision
2. Notice

Question 6

Defense to Enforcement of Equitable Servitude

Answer 6

1. Unclean hands - P has made same use of property he’s complaining about
2. Acquiescence- P let other neighbors to the same thing
3. Laches
4. Estoppel

Question 7

Voiding Residential Use Restriction by Virtue of Changed Conditions?

Answer 7

• All lots in neighborhood have to be affected

- All or nothing proposition

Question 8

Horizontal Privity

Answer 8

1. At the time the promisor entered into the covenant with the promisee, the two must have shared some interests in the land independent of the covenant (grantor-grantee, mortgagee-mortgagor, lessor - lessee.)
2. Horizontal privity concerns only original parties. You must look to the original covenanting parties to determine.

Question 9

How to determine what kind of privity is required in a question?

Answer 9

1. Look to see who is the successor in interest
2. If Successor is the P, then we know he is trying to establish the BENEFIT of the covenant runs to the P (Only requires vertical)
3. If Successor is the Defendant, then we know that the P is trying to establish the BURDEN of the covenant (Requires horizontal and vertical)

Question 10

Vertical Privity

Answer 10

1. To be bound the successor in interest to the party must hold the entire durational interest held by the convenator at the time he made the covenant.
2. Required for benefit to run. Where no HP, the promisee’s successors can enforce against the promisor, but not against his successors

Question 11

Distinguish damages of covenants and servitudes

Answer 11

1. If P wants money damages restriction is called a covenant at law
2. If P wants injunction the restriction is called Equitable Servitude

Question 12

Dedication

Answer 12

1. Land transferred to a public body (city, county, etc.) by dedication.
2. Can be written or oral, in a plat or map, or opening to public use
3. Must be accepted, which can be my formal resolution, approval of map or plat, or actual assumption of maintenance of improvements