Interest In Land

Question 1

What would determine whether a plaintiff is seeking a equitable servitude or a real covenant ?

Answer 1

Relief requested. If plaintiff seeking monetary damages, plaintiff would try to enforce under a real covenant. If plaintiff seeking an injunctive relief, plaintiff would enforce under a equitable servitude.

Question 2

Real covenant

Answer 2

Written promise concerning real property

Question 3

How does one determine if the covenant burdens or benefits the land?

Answer 3

The individual that’s seeking the covenant- see if the covenant he is seeking benefits or burdens him.

Question 4

What are the requirements for a burden to run?

Answer 4

Writing

Intent - originating party must have intended that the successors in interest be able to enforce the covenant. Intent is usually found in the language of original agreement.

Privity ( vertical / horizontal )

Touch and concern

Notice

Question 5

What are the requirements for benefit to run with the land ?

Answer 5

Intent

Touch and concern

Vertical privity

Writing

Question 6

What are the three kinds of notice

Answer 6

Actual - actual knowledge of the covenant

Constructive / record notice - given to the public once it is recorded

Inquiry - when a person would have notice with reasonable inspection

Question 7

Touch and concern means ?

Answer 7

The covenant relates to the use and enjoyment of the land (either in negative or positive way - generally it makes the land more or less value - argue a lot with this one)

Question 8

Vertical privity

Answer 8

Exists between the original party to the covenant and the subsequent party to the covenant . In order to be bound, the successor must hold the entire estate in land held by the original party.

Question 9

Horizontal privity

Answer 9

Requires that at the time the original parties entered into the agreement , they shared some interest in land , independent of the covenant (eg landlord and tenant, mortgagee and mortgage, dominant estate and servient estate in an easement , etc)

Question 10

What the remedy for breach in real covenant ?

Answer 10

Monetary damages

Question 11

3 ways real covenant can be terminated ?

Answer 11

1. Release
2. Merger of the benefited estate and burdened estate
3. Condensation of the burdened estate