Equitable Servitudes

Question 1

What is an equitable servitude

Answer 1

Operates like a real covenant but with easier requirements

Question 2

To bind successor

Answer 2

1. writing
2. Must have bee intended to run with the land
3. Must touch and concern the land
4. Successor must have notice (actual, record, or inquiry)

Question 3

Implied Reciprocal Servitude

Answer 3

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

Usually comes up in planned communities

Question 4

How is Implied Reciprocal Servitude created?

Answer 4

Developer must have intended to create a covenant on all plots of subdivision

Promise to be reciprocal to ever parcel equally (benefit and burden)

Must be negative (restrictive use) rather than positive

Successor must be on notice of the restrictions (at least inquiry)

Must be a common plan or scheme

Question 5

To prove common plan

Answer 5

1. A recorded map of the community showing common scheme
2. Marketing or advertising of the community
3. Oral or written mention that the lots are burdened by common restrictions

Question 6

Termination

Answer 6

Terminate as an easement does

Question 7

Changed circumstances Doctrine

Answer 7

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

Critical Questions: does the property subject to restriction still retain some benefit from the restriction?

Question 8

Equitable defense

Answer 8

equitable defenses are available, including unclean hands (plaintiff not acting in good faith) and laches (unreasonable delay)

Question 9

Common Interest Communities

Answer 9

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

The association
1. Services: Maintains ground, provides facilities, etc.
2. Enforces the covenants: the association is the “heavy” when the neighbor breaks the rules

Question 10

Types of associations

Answer 10

Owners association: when property owners belong and pay dues to an association or board

Condominiums: Where individuals units are owned outright, but common areas are owned collectively as tenants in common

Cooperatives: Property is owned by a corporation (made up of residents/shareholders) that leases individual units to shareholders (residents)

Question 11

Governance: Declaration

Answer 11

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

Question 12

Governance: Powers

Answer 12

The board has general power to manage the common property and administer the residents

Examples
1. Assessments/fees
2. Manage and maintain the common property
3. Enforce rules
4. Create new rules

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

Question 13

Duties

Answer 13

To the community: The association must deal fairly with members of the community

Duties
Prudence
Ordinary care
Business judgment rule controls (board is shielded from honest but mistake business decisions)

Question 14

Fixtures

Answer 14

Tangible personal property that is attached to real property in a manner that is treated as part of the real property (e.g., a wall or a bridge; the materials used to make a wall or a bridge)

Question 15

Making improvements

Answer 15

A fee simple owner of property is free to make improvements to the property, including fixtures, subject to governmental land use regulations.

Holders of a life estate for tenants, by contracts, are limited to doctrine of waste

Question 16

Removal

Answer 16

The buyer of real property is generally entitled to the chattel, unless the seller reserves in the contract the right to keep the chattel

Question 17

Tresspass

Answer 17

Old rule: Trespassers could never remove any fixtures or improvements that they installed

New Rule: Trespassers can remove an improvement, or at least recover the value added to the property, so longa s they acted in good faith