Private Use Restrictions/Limitations

Question 1

Private use restrictions types (2)

Answer 1

1) Real Covenants

2) Equitable Servitude

Question 2

Real Covenant - Gral

Answer 2

• Written promise to restrict the use of own property to benefit another
• “Negative easement”
• SPIT req + Notice
• Possible Nuisance claims

Question 3

Real Covenant - Remedy for breach

Answer 3

Damages

Question 4

Real Covenant - SPIT reqs

Answer 4

• SOF: SADD (signature only from grantor - bindin to grantee if accepted deed with provision)
• Privity of estate: mutual or successive relationship to the same rights of property
• Intent to bind successors: use of words like “heirs/”assigns”/”successors”
• Touch + Concern Land

Question 5

Real Covenant - SPIT - Horizontal Privity

Answer 5

• Covenant in land conveyance document, OR property grantor/grantee OR landlord/tenant
• Covenant will not run if its just agreement btwn 2 parties, it needs to be in a property conveyance deed
• Not enough if in separate promise

Question 6

Real Covenant - SPIT - Vertical Privity

Answer 6

• Vertical: requires successor in interest of the burdened estate takes takes the same identical estate as the original owner

Question 7

Real Covenant - SPIT - Touch+Concern the Land

Answer 7

• Any effect on land use/value/utility (either beneficial/detrimental) - i.e. req to build fence, repairs, option to purchase, pay periodic fees to homes assoc.
• Negative covenants: always touch the land (detriment test) (i.e. not sell liquor, not block view)
• Beneficial covenants: effect is to enhance/increase use/utility of property.

Question 8

Real Covenant - SPIT - Touch+Concern the Land - Exception

Answer 8

• Personal covenants: only create personal obligation in owner of land - i.e. take care of someone’s dog.
• Do not touch/concern land

Question 9

Real Covenant - Notice req

Answer 9

1) Actual
2) Constructive: i.e. covenant in public record
3) Inquiry: reasonable person inspecting neighborhood notices apparent restriction.

Question 10

Equitable Servitude - gral / what, reqs, privity, use

Answer 10

• Failed covenant (usually lack of privity)
• SITS reqs + Notice (actual/constructive)
• No privity req: able to constrain even those not bound by real covenant - i.e. life estate tenant, adverse possessor
• Possible nuisance claims
• Usually for residential development - “COMMON SCHEME”

Question 11

Equitable servitude - Remedy

Answer 11

Only equitable - Injunction/Specific Performance

Question 12

Equitable Servitude - SITS reqs

Answer 12

• SOF: gral rule - exception: negative eq serv- can be implied from common scheme
• Intent to bind successors: use of words like “heirs/”assigns”/”successors”
• Touch + Concern Land
• Successor of covenantor Notice: Actual/Constructive/Inquiry

Question 13

Reciprocal Negative Servitude

Answer 13

• Can be enforced even w/o SOF - implied from common scheme

use on residential development

Question 14

Equitable Servitude - Reqs for reciprocal and mutually enforceable (2)

Answer 14

1) Common plan/Scheme: as intent of grantor/developer that burdens/benefits mutually enforceable - with sale of first lot.
2) Notice to purchaser: actual/constructive/inquiry - (justifies no need of record for negative servitude)

Question 15

Defenses to enforcement of covenants/servitudes (3)

Answer 15

1) Estoppel: statements/actions of benefited party created reliance of burdened party on apparent waiver (mere non use not enough)
2) Unclean Hands: Person engaged in violation of covenant
3) Acquiescence: Benefited owner allowed violations by burdened party - the longer the better

Question 16

Real Covenants/Servitudes Termination causes (4)

Answer 16

1) Agreement: in written to terminate.
2) Abandonment
3) Merger: of burden/benefited land - not renewable bc of later transaction
4) Change in neighborhood conditions

Question 17

Real Covenants/Servitudes Termination causes - Abandonment - Types

Answer 17

• Express: express release of burden
• Implied: failure to enforce restrictions in numerous times vs numerous parties.
  (When mx covenants- abandonment of 1 doesn’t mean abandonment of all)

Question 18

Real Covenants/Servitudes Termination causes - Change in neighborhood conditions

Answer 18

• Court considers full appreciation of benefit and/or restriction impossible
• Change makes all lots in neighborhood unsuitable - i.e. change in zoning