Covenants Flashcards
What is a real covenant
A promise concerning the use of land that runs to successors to the promise
When an agreement binds a successor, it runs with the land
Benefit
The benefit of the covenant is the ability to enforce the covenant
Burden
The burden of the covenant is being subject to it.
Requirements to run with the land
- Writing
- intent
- Touch and concern
- Notice
- Privity
Writing
Real covenant is subject to SOF, so must be in writing
Intent
To bind a successor, the original parties must intend for the covenant to run with the land
Touch and concern
The benefit or burden of the covenant must affect all parties as owners of the land
Negative Covenants
A restriction on use will usually touch and concern because they restrict what you can do with your land.
Watch out for promises that are unenforceable such as discriminatory covenants, as those do not touch and concern the land.
Affirmative covenants
A covenant to pay money (e.g., homeowners’ association fees). Traditionally, such fees did not touch and concern, but the modern trend is to say that these fees do touch and concern.
Notice
What kind of notice is required to run a real covenant?
Actual notice or construction notice. Inquiry notice may also sufice for an equitable servitude
Horizontal Privity
To run the burden to a successor, the original parties to the promise must have been in horizontal privity
Horizontal privity refers to privity of estate, where the estate and covenant are contained in the same instrument (the deed)
you do NOT need horizontal privity to run a benefit
Vertical Privity
Vertical privity refers to the relationship between the original party and his/her successor to the property
To run the burden of the covenant to the successor, the successor must take the original party’s entire interest. This is called strict privity.
To run the benefit of the covenant to the successor, the successor need only take an interest that is carved out of the original party’s estate. This is called relaxed privity.
Remedy
Damages
