Covenants I

Question 1

What is a covenant?

Answer 1

The covenant is a contract to do or to not do something related to land.
– The covenant is unlike the easement because it is not the grant of a property interest.
– Instead, the covenant starts out as a mere contractual limitation regarding land

Question 2

What is the difference between a restrictive covenant and an affirmative covenant?

Answer 2

– Restrictive covenant: A promise to refrain from doing something related to land.
* Most covenants are restrictive.

– Affirmative covenant: A promise to do something related to land.

Question 3

When does a covenant become a real covenant?

Answer 3

The covenant becomes a real covenant when it is capable of running with the land at law, meaning that it is able to bind successors to the originally covenanting parties.
– A real covenant is a property interest

Question 4

When does a covenant become an equitable servitude?

Answer 4

The covenant becomes an equitable servitude when it is capable of running with the land inequity, meaning that it is able to bind successors to the originally covenanting parties.
– An equitable servitude is a property interest

Question 5

What is the difference between a real covenant and an equitable servitude?

Answer 5

– Real covenant: A covenant that is capable of binding successors and enforceable at law.
* Money damages follow a breach.

– Equitable servitude: A covenant that is capable of binding successors and enforceable in equity.
* Injunctive relief follows a breach.

Question 6

For a real covenant, when does the burden run with the land? Remember WITHN

Answer 6

– Writing
– Intent
– Touch and Concern
– Horizontal and Vertical Privity
– Notice.

Question 7

Writing (WITHN)

Answer 7

The original promise, between A and B, must have been in writing (Statute of Frauds)

Question 8

Intent (WITHN)

Answer 8

– The original parties, A and B, must have intended that the promise would bind successors.
– Courts are generous in imputing to the parties the requisite intent.

Question 9

Touch and Concern (WITHN)

Answer 9

– The promise must touch and concern the land, meaning that it must affect the parties’ legal relations as landowners, and not simply as members of the public at large.

Question 10

Horizontal Privity (WITHN)

Answer 10

– Horizontal privity refers to the privity of estate between the originally covenanting parties, A and B.
– It requires that A and B, at the time the promise was made, were in “succession of estate.”
– Succession of estate means that when the promise was made, A and B were in:
* a grantor-grantee relationship;
* a landlord-tenant relationship;
* a mortgagor-mortgagee (debtor-creditor) relationship; or
* that they shared some other servitude in common in addition to the covenant now in question

Question 11

Vertical Privity (WITHN)

Answer 11

– Vertical privity refers to the privity of estate based on some non-hostile nexus between A and A-1.

• The non-hostile nexus can be the product of contract, blood relation, or devise.
• On the burden side, strict vertical privity is required.The covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor.
  – For example, strict vertical privity will be absent if A, who owns in fee simple, has given A-1 a leasehold or a life estate

Question 12

Notice (WITHN)

Answer 12

– A-1 must have had some form of notice of the promise when she took. There are three kinds of notice. Remember AIR.
* Actual: literal knowledge.
* Inquiry: what a routine inspection would reveal.
* Record: what a properly recorded deed would reveal.

Question 13

For a real covenant, when does the benefit run with the land? Remember WITV

Answer 13

– Writing
– Intent
– Touch and Concern
– Vertical Privity

Question 14

Writing (WITV)

Answer 14

The original promise between A and B must have been in writing (Statute of Frauds)

Question 15

Intent (WITV)

Answer 15

– The original parties intended that the benefit would run.
– Courts are liberal in imputing the requisite intent to the parties

Question 16

Touch and concern (WITV)

Answer 16

The promise must touch and concern the land, meaning that it must affect the parties’ legal relations as landowners, and not simply as members of the public at large

Question 17

Vertical Privity (WITV)

Answer 17

– There must be some non-hostile nexus between Band B-1, which can be satisfied by contract, blood relation, or devise.

• On the benefit side, the standard is relaxed vertical privity. The promise is enforceable by a person who succeeds to the original promisee’s estate or to a lesser interest carved out of that estate.
  – For example, relaxed vertical privity will exist if B, who owns in fee simple, gives B-1 a leasehold or a life estate.

Question 18

How is an equitable servitude created? Remember WITNES

Answer 18

– Writing
– Intent
– Touch and Concern
–Notice
– (and the ES is a reminder that we are dealing with Equitable Servitudes)

Question 19

NOTE ES

Answer 19

Unlike a real covenant,
– Privity is not required to create an equitable servitude.
– You do not need to perform separate burden and benefit analysis. The burden and/or benefit will run with the land if the elements for equitable servitude are satisfied

Question 20

Writing (WITNES)

Answer 20

Writing: In general, but not always (e.g.,Common Scheme Doctrine), the original promise was in writing (Statute of Frauds)

Question 21

Intent (WITNES)

Answer 21

The originally promising parties intended that the promise would bind successors.
* Courts are generous in finding the requisite intent

Question 22

Touch and Concern (WITNES)

Answer 22

The promise must touch and concern the land, meaning that it must affect the parties’ legal relations as landowners, and not simply as members of the public at large

Question 23

Notice (WITNES)

Answer 23

The assignees or successors of the originally promising parties had some form of notice of the promise. (Remember AIR)

Question 24

What is the Common Scheme Doctrine?

Answer 24

Under the common scheme doctrine, the majority of courts will imply what is called an implied equitable servitude (also known as a reciprocal negative easement/servitude), to hold B, the unrestricted lot holder, to the restriction

Question 25

What are the two elements of the Common Scheme Doctrine?

Answer 25

»When the sales began, the subdivider, A, had a general scheme of residential development which included the defendant lot now in question.

»The defendant, B, must have had some form of notice of the restriction when he took.
* Remember AIR, Actual, Inquiry, andRecord Notice.