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Flashcards in Equitable Servitudes Deck (26):

Tulk v. Moxhay

Tulk (plaintiff)plot of land that contained houses & square garden. Sold a portion to Elms, conveying the portion in fee w/covenant stipulating that the square garden must be maintained & that no houses be built. The covenant purported to bind Elms as well as his heirs, executors, and administrators. Elms’s land was eventually conveyed to Moxhay (defendant), whose deed did not contain the same covenant, although he took the land WITH KNOWLEDGE of it. Moxhay desired to build upon the square garden. Tulk, who still owned several houses on the land, sought an injunction preventing Moxhay from disturbing the square garden.


Tulk v. Moxhay

One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant.


Critical differences between Equitable Servitudes & Real Convenants?

e/s are only enforced in equity ( injunction)


can equitable servitude claims get damages?



real covenants can get....?

money damages & injunctions (both)


When a promise can't be enforced because of insufficient privity, what will happen?

courts will often enforce them anyway as Equitable Servitudes


For the court to enforce the equitable servitude the acquiring party must have _____?

KNOWN about the promise


Many jurisdictions will not enforce an equitable servitude unless it has both ______ & _____?

1) the promisor's burden
2) he promisees benefit
both run w/land
(most american juris don't even consider issue, but when do are split as to follow this rule)


London County Council v. Allen

Morris Allen owned land in London and entered into an agreement with the London City Council (plaintiff) that he would reserve two parcels for public road construction and would not erect any buildings upon those two parcels. Allen’s wife (defendant) built three houses on the reserved lots. The City Council issued an order demanding that the houses be torn dow
R: The doctrine of the English case of Tulk v. Moxhay prevents a municipality from enforcing the terms of a real property covenant against a successor in title to the original covenantor when the municipality is not the owner of land that would benefit from the performance of the covenant.


How to know difference between an easement or real covenant?( London County Council v. Allen)
(equitable servitude in gross)

a 5 part definition
a 3 part definition
Here was just a promise---so NOT in easement land
was an equitable servitude in gross.


implied reciprocal negative easements
(sanborn v. Mclean)

allow the enforcement of a restrictive covenant that is NOT included in the deed (that never existed)
(gap fillers) (no promise, but they create a way around it)


To invoke Implied Reciprocal Neg. Easement

1) the unrestricted lot must have originated form a COMMON OWNER as the restricted lots &
2) the unrestricted lot must have been purchased w/ACTUAL or CONSTRUCTIVE KNOWLEDGE of the restriction


what is a more proper name to call an implied reciprocal neg. easement??

Implied reciprocal negative equitable servitudes!
(they are neither easements nor real convenants)


Sanborn v. Mclean
(michigan supr ct & clifford thinks is ridiculous)

McLaughlins owned a large tract of land. In 1892 and 1893, they conveyed several portions of the land to others. These conveyances included restrictions to the effect that only residences would be built on the land. In 1910 or 1911, the McLeans (defendants) purchased some of the land through a series of conveyances tracing directly to the McLaughlins, whose title DID NOT include the same restriction. The McLeans started to build a gas station on their lot. Sanborn and other neighbors (plaintiffs) sued the McLeans to enjoin the construction of the gas station


Sanborn v. Mclean rule

Where the owner of two or more related lots conveys one with restrictions for the benefit of the retained lot(s), the restrictions are deemed to apply also to the retained lot(s). (implied, never in writing) :(


Why does clifford think Sanborn v. Mclean is ridiculous?

"constructive or implied promise" (there was no promise here= lying!)
-was not an easement!
-didnt comply w/statue of frauds (writing)


where don't you want to live if you want to do title work?

Michigan. ;)


Snow v. van Dam

r: Under Massachusetts law, owners of real property may enforce use restrictions imposed by an instrument of conveyance between a common grantor and a third party when the evidence demonstrates that the common grantor intended to establish a building scheme.
(when sell land the promise goes w/it, runs w/it.
if the seller is gone, he can't enforce it)


Snow rule
(common development scheme)

-universally excepted
-must be:
1) touching &
2) in original common development scheme
-every single lot dominate by & dominates over every other lot
-only party w/appropriate privity can enforce.


why does common development scheme make sense?

if your buying into a resident neighborhood then want neighbors to do it too.


Does town have a say in comm. development scheme/snow rule?

no , cuz not dominated over or by


Does the US government have power to create a FSA?

NO. Only power of the states.


dark side of comm development?

if want to change to a restaurant & everyone is in horizontal privity then would have to consult EVERYONE & not practical.


Requisite of having an equitable servitude

KNOWN & touching & concerning land


gap filler, filled in due to lack of a promise...?

implied reciprocal negative easement


why is implied reciprocal negative easement not an easement?

doesn't have FIVE requirement of easement