Ch 25: Equitable Servitudes

Question 1

Two ways to bind a successor to an original party’s promise is:

Answer 1

real covenant and equitable servitude

Question 2

Equitable servitude

Answer 2

Operates like a real covenant but has easier requirements

Question 3

To bind a successor under equitable servitude, one needs:

Answer 3

• must be in writing
• must have been intended to run with the land
• must touch and concern the land
• successor must have notice (actual, record/constructive, or inquiry)
• no privity requirement

Question 4

The remedy for a breach of equitable servitude is?

Answer 4

injunctive relief

Question 5

Implied reciprocal servitude

Answer 5

a kind of equitable servitude that is implied and does NOT need to be in writing

Question 6

Implied reciprocal servitudes usually come up in?

Answer 6

planned communities (condo, subdivision, etc)

Question 7

How are implied reciprocal servitudes created?

Answer 7

• Developer must intend to create a covenant on all plots in the subdivision
• Promises must be reciprocal (benefits and burdens each and every parcel equally)
• Must be negative rather than positive
• A successor must be on notice of the restriction
• Must be a common plan or scheme

Question 8

To prove there is a common plan under implied reciprocal servitudes, look for:

Answer 8

• A recorded map of the community showing the common scheme
• Marketing or advertising of the community
• Oral or written mention that the lots are burdened by common restriction

Question 9

Equitable servitudes terminate as an?

Answer 9

easement does

Question 10

Changed circumstances doctrine

Answer 10

Look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put into place

Question 11

Equitable defenses

Answer 11

• Unclean hands (plaintiff not acting in good faith)
• Laches (unreasonable delay)

Question 12

Common interest communities

Answer 12

Real estate development in which individual units/lots are burdened by a covenant to pay dues to an association

Question 13

The association does what?

Answer 13

• Services (maintains grounds, provides facilities, etc)
• Enforces the covenants (the association is the “heavy” when your neighbor breaks the rules)

Question 14

3 types of associations

Answer 14

-Owners association
- Condominiums
- Cooperatives

Question 15

Owners associations

Answer 15

Where property owners belong and pay dues to an association or board

Question 16

Condominiums

Answer 16

Where individual units are owned outright, but common areas are owned collectively as tenants in common

Question 17

Cooperatives

Answer 17

Property is owned by a corporation that leases individual units to shareholders

Question 18

Declaration

Answer 18

The governing documents that outline the controlling covenants and restrictions, as well as the particulars about the association or board

Question 19

The board has general powers to manage the common property and administer the residents including:

Answer 19

• assessments/ fees
• manage and maintain the common property
• enforce rules
  -create new rules

Question 20

A new rule from a board or association must be?

Answer 20

Basic rule: a new rule must be reasonably related to further a legitimate purpose of the association

Question 21

The association must deal fairly w/ members of the community including:

Answer 21

-good faith
- prudence
- ordinary care
- business judgment rule (board is shielded from honest but mistaken business decisions)

Question 22

Fixtures

Answer 22

Tangible personal property that is attached to real property in a manner that is treated as part of the real property

Question 23

A fee simple owner of property is free to make ______?

Answer 23

improvements, including fixtures, subject to governmental land use regulations

Question 24

Holders of a life estate or tenants are limited by the doctrine of?

Answer 24

waste

Question 25

The buyer of real property is generally entitled to _____, unless?

Answer 25

chattel ; unless the seller reserves in the contract the right to keep the chattel

Question 26

Removal for life tenants and tenants for fixtures?

Answer 26

Presumption is that they can remove fixtures unless doing so would permanently damage the property

Question 27

Trespassers with fixtures

Answer 27

New rule: trespassers can remove an improvement, or at least recover the value added to the property, so long as they acted in good faith