Covenants/Equitable Servitudes Flashcards
Covenant
Promise to do/not to do something related to land. UNLIKE AN EASEMENT, because not grant of a property interest, but rather Contractual Limitation regarding land
CAN BE AFFIRMATIVE/NEGATIVE
Covenants v. Equitable Servitude
Look at the recovery you are seeking,
Money damages = Covenant
Injunction = Equitable Servitude
Covenant Running With Land (Burden)(WITHN)
W - Writing, original promise between original parties in writing
I- Intent, Original parties intended covenant would run
T - Touch/Concern, Promise affected parties as landowners.
H(V) - Horizontal - nexus between original parties, requires: succession of estate meaning grantor/grantee, landlord/tenant Or mortgagor/mortgagee relationship.
Vertical - nexus between one original party and who they sold to requires NON HOSTILE nexus (No AP)
N - Notice, new party had notice when they took
Covenant Running with Land (Benefit)(WITV)
W - Writing between original parties
I - Intent, Parties intended promise would bind successors
T - Touch/Concern, Promise affected parties as landowners
V - nexus between one original and new party NON HOSTILE
Equitable Servitudes
Promise that equity will enforce against successors, Accompanies by equitable relief.
Negative Equitable Servitudes do no need to be in writing if implied from common scheme or plan
Creation of Equitable Servitude (WITNES)
W - Original promise in writing
I - Original parties intended promise to run
T - Promise affected parties as landowners
N - Successor of burdened land had notice
Common Scheme or Plan
When sale began, subdivider had someone general scheme of residential development which includes defendant’s land. AND
Defendant had notice of promise contained in prior deeds. Three forms of notice: Actual, Inquiry, Record
Defenses to Equitable Enforcement
Changed Conditions so pervasive that the entire area has changed
