Definitions

Question 1

elements of equitable servitude

Answer 1

writing
binding
touching
notice

Question 2

created in writing

Answer 2

the original promise must be in the form of a writing that was signed or accepted by both he original owner of the burdened parcel to satisfy the statute of frauds

Question 3

intended to bind the future tenants

binding

Answer 3

Does the writing indicate that the benefit and burden of the promise bind and benefit “assigns” or heirs, successors and assigns of the original parties.

Question 4

does it touch and concern the land

touching

Answer 4

in order to touch and concern the land the promise must meet 1 of the 4 following
1. physical touching of the land
2. use restrictions
3. payment of money
4. economic impact

Question 5

Touching #1

PUPE

Answer 5

Does the promise actually touch the land: this could invovles maintenance, repairing, or building structures of the land itself.

Question 6

Touching #2

PUPE

Answer 6

Use Restriction: does the promise relate to using or not using the land in a certain way
Example: which could be using the land for only residential use or prohibiting 3-tenement house.

Question 7

touching #3

PUPE

Answer 7

Does the promise involve a Payment of money for the use of the land or improvements of the land.
example: HOA fees, for mantenance of common areas or utilities access.
Analyze how the payment of money is connected to the land!

Question 8

Touching #4

PUPE

Answer 8

Does the promise include and economic impact on the land byt making the burdened parcel less valuable and the benefitting parcel more valuable.
Example: consider policy arguments

Question 9

PUPE (touch and concern)

Answer 9

Physical Touching
Use Restrictions
Payment of Money
Economic Impact

Question 10

Was the Covenent in Gross

Answer 10

Does the berden only benefit one person. If we need to apply the majority and minority rules.

Question 11

Covenent in Gross: Majority rule

Common Law

Answer 11

Can only be enforced against the original promisor and not the successor

Question 12

Covenent in Gross: Minority rule

Answer 12

the promise may be enforced against a successor. HOW!

Question 13

Binding: is the burden of the land Binding on the successors (run with the land)?

Answer 13

We need to determine 3 elements to confirm that burden of the promise is binding on the land’s successor?

privity: 1. Horizontal 2. vertical and 3. notice to bonified purchaser

Question 14

Horizontal Privity Exists

key words strangers in title page 222

Answer 14

HP exists if- it requiresd a land transfer, the original parties are either 1. landlord/tenant 2. grantor/grantee, or 3. one party holds and easement right in the others party’s land.

meaning that there was an original land transfer between the original promisor and promisee.

Question 15

Vertical Privity Exists

Answer 15

Vertical Privity Exists if: the original promisor B conveyed his entire estate to B1
traditionally for vertical privity ot exist the entire estate must be sold to the successor.
The Burden side: if B1 leases the estate from b, vertical privity is lost.

the Benefit side: typically anyone who takes posession of the Promisees property can sue the promisor for breach. to include a lease. HOA fees.

Question 16

Notice to Bonafide Purchaser exists if:

Answer 16

if the successor B1 is a bona fide purchaser of hte burdened parcel from the original promosor b, the burden of the promise binds the purchaser b1 only if b1 had actual or constructive notivce of the real covenant.

Question 17

what if not burden to run to successors!
if burden does not run we can use injunctive!

Answer 17

the benefit and the burden analysis

Question 18

a convenant is

we are taking about a contract with damages v. an equitable servidute wi

Answer 18

is a contract between parties that meets techinical requireements and is is bining against one who later buys the promisors land or is enforeable by one who later buts the promisors land.

Question 19

the modern approach

Answer 19

abandons the privity requirement: you must ask what jurisdiction are we in?

Question 20

understanding the burdened side and the benefit side.

Answer 20

1. The Promisor is the burdened side
2. The Promisee is the benefited side.

Question 21

ask youself

Answer 21

what is the intent
what is policy (notice, elderly etc)

Question 22

three tests of reasonablness

Answer 22

1. third restatement
2. Davidson
3. -Nahrstedt

Question 23

what is the davidson test

Answer 23

the test is for reasonableness (8 factors) with touch and concern as one factor.

Question 24

Nahrstedt test.

Answer 24

Unreasonableness Test: (based on the development as a whole, presumption of reasonable)
* whether the restriction is enforced unless they are arbitrary, violate public policy, or impose a disproportionate burden (3 attacks)
* The burden in on the P
* “unreasonableness” is not determined by the specific circumstances of the homeowner but rather by its effect on the development as a whole.
* establishes a high standard

Question 25

what is the 3rd rest test

Answer 25

enforceable unless: unreasonable, arbitrary or capricious The homeowners’ association cannot be “arbitrary and capricious” in its enforcement of the rules.[3] That means there must “be some rational relationship of the decision or rule to the safety and enjoyment of the [common interest community].”[4] It also means that HOAs have an obligation to enforce the rules consistently and fairly, for the good of the community.

Question 26

Equitable Servitude

Answer 26

An equitable servitude is a nonpossessory interest in land that operates much like a covenant running with the land. HowevertThe distinction between the two is that the remedy provided by and equitable servidude is "injunctive relief".

Question 27

how does an equitable servitude satisfy the statute of frauds | 3 ways

Answer 27

1. acceptance of a deed poll: that is accepted by the grantee/promisor 2. reference to a filed plat: this would be in a plat for a subdivsion, the plat must be recorded. 3. implied reciprocal servitude: it is in my deed and the developer promises to put it in everyone elses deed.

Question 28

what are the elements of ES

Answer 28

1. Writing 2. Binding (intent to be bound) 3. Touching (PUPE) 4. Notice (actual, Inquiry or constructive) (look at the enforcer)

Question 29

if it is a plat plan or a development with a restriction, who can sue

Answer 29

anyone of the house in the development

Question 30

statements for exam

Answer 30

for the burden to run the original parties must have intended for the burden to run.

Question 31

4 other ways to terminate a covenant

Answer 31

Other ways to terminate a covenant: 1. Language in the instrument itself 2. Merger; similar to easements 3. Release: both parties ague in writing 4. Prescription thing adverse possession.

Question 32

4 equirable defenses against covenant

Answer 32

Other equitable defenses: is not observing covenant 1. **Acquiescent, abandonment or unclean hands**, has the beneficially tolorated the previous violation (acquiescing), violated the covenant yourself (unclean hands) or tolerated violation by other (abandonment). 2. **Estoppel:** has the owner of the s*ervient state changed position in reliacne on something the dominant estate owner said* 3. **Laches:** has the covenant been ignored or breach for a substantial amount of time 4. **Marketable title acts**: states might create a system of policy that does away with covenants unless re-recorded (MA registered v. recorded land

Question 33

ES is more easily proved because?

Answer 33

it does not reuqired privity and the notice requirement is east to hit.

Question 34

if if an element of a covenant or ES is not satisfied, is it still binding

Answer 34

yes, against the original promisor and promisee

Question 35

running with the land, a rebuttable presumption

Answer 35

the following create a rebuttable presumption: 1. this covenant runs with the land 2. heirs and assigns 3. the covenant is appurtentant to the land. NOTE: if touching is physical, this is a strong presumption of running with land, if second property is far away, this is a presumption of gross.

Question 36

touch and concern focuses on the reasonablness of the intent.

Answer 36

* What are the values balancing to both parties o Keeping it fair to both parties o The court looked to * Testimony * The advertisement * The nature of the hilltop * The nature of ambiguous testimony,. * what is the policy  We need to find the original intent  Disruption of expectations and the court is trying to balance those expectations. * How does the court determine that there is a general scheme o You could see this either way! * This development was different  This was over a long period of time, it is not the same thing we would think about in a development  Does a purchaser think of the common general scheme * The court finds: * Top of page 584 * Constituted strong evidence however this only attached to the lakefront lots * How does the court ultimate solve this issue  Bellemeade Co. v. Priddle: Another Kentucky case, Bellemeade, was used to demonstrate that a subdivision can be divided into restricted and unrestricted sections, based on the developers' intent and marketing practices. In this case, the court held that one section of a subdivision was not part of the restricted area and could be sold for commercial development.  What E did the court use: differently situation and contextualized o The court determined that the hilltop is substantively different and is not subject to the covenant

Question 37

What covenant's BURDEN do not usually touch and concern the land

Answer 37

* The covenant for payment of money generally does not. for future services * A covenant that names a management company who manage properties for specific percentage of rentals * Kind of an inch providing that a property seller will build a house on a lot, for a price, when the purchaser decides what kind of house they want to build. * The subsequent owners will not be forced to use the seller as their builder. * A contract that a seller would deliver water for a fixed price, where the burden property owner can easily dig a well. * I cannot find it promising to support or oppose the rezoning application that does not touch and concern the land.

Question 38

what key policies do we want to remember

Answer 38

1. efficient use of the land * Courts dislike covenants that are open-ended that can create costly unforeseen or uncertain financial burdens. * Historically performative covenants were disliked comment courts are still wary of them * Subsequently on owners don't have an opportunity to rectify predecessors mistakes. - the legitimate purpose is to improve and enjoy land\ - continue the residential character - "convenient instrument" for property owners to advance their common interests

Question 39

What covenant's BENEFIT not usually touch and concern the land

Question 40

vertical privity can run with

Answer 40

trqansfers, sales, gifts and inheritances but not leases ## Footnote there is one that is effected by the lease

Question 41

vertical privity minority

Answer 41

Burden: must get entire estate in transfer Benefit: just need to have possesion of estate.

Question 42

notice if ES applies to who ## Footnote t

Answer 42

the burdened party ® Privity replaced with notice: (neponsit) ◊ Actual -told ◊ inquiry - can observe } Less likely than in easmeetn } Can be assumed because of common nature – All houses painted purple – Very subtle – Coujld be common feather – Certain archtectual style ◊ Constructive notice: } Reasonable search of records

Question 43

notice of ES, what does the court hate

Answer 43

the court hates, buying a burndened property and trying to get around the covenant - ratification by participation

Question 44

ES that is gross

Answer 44

the majority may reach the promisee1 if notice. from original owner. in minority, original owner cannot reach Pee1

Question 45

what are the 4 factors to a common scheme

Answer 45

1. A common granter that is a developer who sells or expresses an intention to put an entire tract on the market subject to a general plan; 2. A subdivision platter map of the entire tract noting the restrictions, filed or recorded at the time of sale of one of the lots; 3. an actual development in sale of the lots occurring in accordance with the plate; And 4. Substantial uniformity and the restrictions imposed in the deeds to the lots executed by the common owner or developer