Property AMP Set - Covenants And Equitable Servitude Flashcards
At common law, horizontal privity is required _________.
A For a real covenant to be created
B For the burden of a real covenant to run with the land
C For a real covenant to touch and concern the land
D For the benefit of a real covenant to run with the land
B
At common law, horizontal privity is required for the burden of a real covenant to run with the land. It is NOT required simply for a real covenant to be created. A real covenant is a written promise to do or not do something on the land. The burden of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be bound by the covenant;2. The successor in interest has notice of the covenant;3. There is horizontal privity between the original covenanting parties;4. There is vertical privity between the covenantor and her successor in interest; and5. The covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land). Horizontal privity means the original parties to a real covenant shared some interest in the land independent of the covenant at the time they entered the covenant (e.g., as grantor and grantee). At common law, horizontal privity is NOT required for the benefit of a real covenant to run with the land. More is required for the burden to run, but the benefit of a covenant will run with the land if: 1. The covenanting parties intended that successors in interest be benefitted by the covenant;2. There is vertical privity between the covenantee and her successor in interest; and3. The covenant touches and concerns the land.
Horizontal privity exists between:
A An original party to a real covenant and her successor in interest
B A party burdened under a real covenant and any party seeking to enforce the covenant
C Parties to a real covenant who shared an independent interest in the land at the time they entered the covenant
D The original parties to a real covenant, regardless of their relationship
C
Horizontal privity exists between parties to a real covenant who shared an independent interest in the land at the time they entered the covenant. A real covenant is a written promise to do or not do something on the land. The burden of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be bound by the covenant;2. The successor in interest has notice of the covenant;3. There is horizontal privity between the original covenanting parties;4. There is vertical privity between the covenantor and her successor in interest; and5. The covenant touches and concerns the land. Horizontal privity requires that the original covenanting parties shared some interest in the land independent of the covenant at the time they entered the covenant (e.g., as grantor and grantee). Thus, it does NOT exist between the original parties to a real covenant absent such a relationship, nor does it exist generally between a party burdened under a real covenant and any party seeking to enforce the covenant. In contrast with horizontal privity, vertical privity refers to the relationship between an original party to a real covenant and her successor in interest. For the burden of a covenant to run, this element is satisfied if the successor holds the entire durational interest held by the covenantor at the time she made the covenant.
Which is not required for the benefit of a real covenant to run with the land?
A Vertical privity
B The covenant touches and concerns the land
C Notice
D Intent
C
For the benefit of a real covenant to run with the land, notice is NOT required. If the owner of the benefitted parcel discovers the covenant after acquisition, she still can sue to enforce it. A real covenant is a written promise to do or not do something on the land. The benefit of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be benefitted by the covenant; 2. There is vertical privity between the covenantee and her successor in interest; and 3. The covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land). In contrast, for the burden of a real covenant to run to a subsequent purchaser, she must have actual or constructive notice of it at the time she acquires the burdened land and there must be horizontal privity between the original covenanting parties, in addition to the above requirements.
If the benefited party seeking to enforce an equitable servitude previously consented to another party’s violation of the servitude, the burdened party should assert the defense of:
A Unclean hands
B Acquiescence
C Laches
D Changed conditions
B
If the benefited party seeking to enforce an equitable servitude previously consented to another party’s violation of the servitude, the burdened party should assert the defense of acquiescence. Acquiescence in a violation of the servitude may be deemed abandonment of the servitude as to other burdened parties. The burdened party should not assert the defense of unclean hands. This defense applies when the benefited party is violating a similar restriction on her own land. Here, there is no indication that the benefited party herself is violating the servitude. The burdened party should not assert the defense of laches. This defense applies when the benefited party fails to bring suit against the burdened party within a reasonable time. Here, there is no indication that the benefited party’s suit is untimely. The burdened party should not assert the defense of changed conditions. This defense applies when a neighborhood has changed significantly since the time a servitude was created such that it would be inequitable to enforce the restriction. Here, there is no indication that a neighborhood has changed.
Which of the following is not required for the benefit of a real covenant to run to successors in interest?
A There is horizontal privity between the original covenanting parties.
B The covenanting parties intended that successors in interest be benefitted by the covenant.
C The covenant touches and concerns the land.
DThere is vertical privity between the covenantee and her successor in interest.
A
Horizontal privity between the original covenanting parties is not required for the benefit of a real covenant to run to successors in interest. A real covenant is a written promise to do or not to do something on the land. The benefit of the covenant will run to successors in interest if: The covenanting parties intended that successors in interest be benefitted by the covenant;There is vertical privity between the covenantee and her successor in interest; andThe covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land). For the burden of a real covenant to run to successors in interest, vertical privity requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time he made the covenant. On the other hand, vertical privity for the running of the benefit is satisfied when the successor in interest holds any possessory estate, even a lesser estate.
Which of the following best states the relationship between covenants and zoning ordinances?
A If a zoning ordinance is more restrictive than a covenant, a landowner need only comply with the covenant.
B A landowner must comply with both covenants and zoning ordinances.
C Because zoning is enforced by the government, zoning ordinances always take precedence over covenants.
D If a covenant is more restrictive than a zoning ordinance, a landowner need only comply with the zoning ordinance.
B
A landowner must comply with both covenants and zoning ordinances. A covenant is a promise to do or not to do something on the land. A zoning ordinance is a statute that regulates the use of land. Both must be complied with, and neither provides any excuse for violating the other. Thus, if a covenant is more restrictive than a zoning ordinance, the covenant controls. Likewise, if a zoning ordinance is more restrictive than a covenant, the zoning ordinance controls. Although zoning is enforced by the government rather than by private suit, this fact alone does not give zoning ordinances precedence over covenants. As explained above, both must be complied with.
If a plaintiff seeks money damages for breach of a promise relating to the use of land, she must show that it qualifies as:
A An equitable servitude
B A real covenant
C A covenant for title
B
If a plaintiff seeks money damages for breach of a promise relating to the use of land, she must show that it qualifies as a real covenant. A real covenant is a written promise to do or not do something on the land. Real covenants run with the land at law, and thus the general remedy for their breach is damages. In contrast, if the plaintiff seeks equitable relief, such as an injunction or specific performance, the promise may be enforced as an equitable servitude. An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against assignees of the burdened land who have notice of it. A covenant for title is a covenant contained in a deed that gives the grantee and her successors certain assurances regarding the title conveyed. In a deed that contains covenants for title (i.e., a general or special warranty deed), a grantor covenants against title defects created by himself and/or all prior titleholders. Covenants for title are distinct from covenants relating to the use of the land (i.e., real covenants).
If someone burdened by an equitable servitude can raise the defense of estoppel to prevent its enforcement, it is probably because the benefited party:
A Acted so that a reasonable person would believe she had waived or abandoned the covenant, and the burdened party relied on this
B Failed to bring suit against the burdened party within a reasonable time
C Is attempting to enforce a servitude in a neighborhood that has changed significantly since the time the servitude was created
D Is violating a similar restriction on her own land
A
If someone burdened by an equitable servitude can raise the defense of estoppel to prevent its enforcement, it is probably because the benefited party acted so that a reasonable person would believe she had waived or abandoned the covenant, and the burdened party relied on this. If the benefited party is violating a similar restriction on her own land, the burdened party would raise the defense of unclean hands. If the benefited party failed to bring suit against the burdened party within a reasonable time, the burdened party would assert that the suit is barred by laches. If the benefited party is attempting to enforce a servitude in a neighborhood that has changed significantly since the time the servitude was created, the burdened party would raise the defense of changed conditions.
For the burden of a real covenant to run to a successor in interest, the successor must be in __________ with the covenantor.
A horizontal privity
B privity of contract
C privity of possession
D vertical privity
D
For the burden of a real covenant to run to a successor in interest, the successor must be in vertical privity with the covenantor. A real covenant is a written promise to do or not to do something on the land. The burden of the covenant will run to successors in interest if: (i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; (iii) there is horizontal privity between the original covenanting parties; (iv) there is vertical privity between the covenantor and his successor in interest; and (v) the covenant touches and concerns the land. Vertical privity requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time he made the covenant. The successor need not be in horizontal privity with the covenantor for the burden to run. Horizontal privity requires that the original covenanting parties shared some interest in the land independent of the covenant at the time they entered into the covenant (e.g., grantor-grantee, landlord-tenant). It does not refer to a party’s relationship with a successor. The successor need not be in privity of contract or privity of possession with the covenantor. Privity of contract refers to the relationship between parties to a contract. Privity of possession refers to the relationship between parties in successive possession of real property (e.g., adverse possessors).
May a grantee be bound by a covenant that does not appear in his deed or chain of title?
A Yes, if there is a common scheme for development and the grantee had notice of the covenant.
B No, if the deed contains a covenant against encumbrances.
C Yes, if the covenant touches and concerns the land.
D No, if the deed is a quitclaim deed.
A
A grantee may be bound by a covenant that does not appear in his deed or chain of title if there is a common scheme for development and the grantee had notice of the covenant. An equitable servitude is a covenant (i.e., a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against successors to the burdened land who have notice of the covenant. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, negative equitable servitudes may be implied if (i) there is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant), and (ii) the grantee had actual, record, or inquiry notice of the covenant. Except as explained above, a grantee may not be bound by a covenant that does not appear in his deed or chain of title even if the covenant touches and concerns the land. The burden of an equitable servitude will run to successors in interest if: (i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; and (iii) the covenant touches and concerns the land (i.e., it benefits the covenantor and her successor in their use and enjoyment of the burdened land). In the absence of a writing, however, the servitude will not be enforced unless there is a common scheme for development as explained above. A grantee may be bound by a covenant that does not appear in his deed or chain of title even if the deed contains a covenant against encumbrances. This is a covenant contained in a general warranty deed assuring that there are neither visible encumbrances (e.g., easements) nor invisible encumbrances (e.g., mortgages) against the title or interest conveyed. The presence of this covenant does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude. A grantee also may be bound by a covenant that does not appear in his deed or chain of title even if the deed is a quitclaim deed. This type of deed conveys whatever interest, if any, the grantor has in the property. It does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude.
If the benefited party seeking to enforce an equitable servitude is violating a similar restriction on his own land, which of the following defenses should the burdened party assert?
A Unclean hands
B Changed conditions
C Acquiescence
D Laches
A
If the benefited party seeking to enforce an equitable servitude is violating a similar restriction on his own land, the burdened party should assert the defense of unclean hands. This defense will apply as long as the plaintiff’s violation is of the same general nature. The burdened party should not assert the defense of acquiescence. This defense applies when the benefited party acquiesces to one burdened party’s violation of the servitude and thus may be deemed to have abandoned the servitude as to other burdened parties. Here, the benefited party himself is violating the servitude and thus has unclean hands. The burdened party should not assert the defense of laches. This defense applies when the benefited party fails to bring suit against the burdened party within a reasonable time. Here, there is no indication that the benefited party’s suit is untimely. The burdened party should not assert the defense of changed conditions. This defense applies when the neighborhood has changed significantly since the time the servitude was created such that it would be inequitable to enforce the restriction. Here, there is no indication that the neighborhood has changed.
Which of the following must exist for the benefit of a real covenant to run with the land?
A Only vertical privity
B Only horizontal privity
C Horizontal privity and vertical privity
D Neither horizontal privity nor vertical privity
A
For the benefit of a real covenant to run with the land, only vertical privity must exist. A real covenant is a written promise to do or not do something on the land. The benefit of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be benefitted by the covenant;2. There is vertical privity between the covenantee and her successor in interest; and3. The covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land). For the benefit to run, vertical privity exists when the successor in interest holds even a lesser estate than the original covenantee had. In contrast, for the burden to run, vertical privity requires that the successor hold the covenantor’s entire durational interest. Horizontal privity is NOT required for the benefit of a real covenant to run with the land. Horizontal privity means that the original covenanting parties shared some interest in the land independent of the covenant at the time they entered into the covenant (e.g., as grantor and grantee). It is required only for the burden to run.
Which of the following is required for the burden of an equitable servitude to run to a subsequent purchaser of the land?
A There must be a common scheme for development
B There must be horizontal privity between the original covenanting parties
C The purchaser must have notice of the covenant
C
For the burden of an equitable servitude to run to a subsequent purchaser of the land, the purchaser must have notice of the covenant. An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it. The burden of an equitable servitude will run to a subsequent purchaser if: 1. The covenanting parties intended that successors in interest be bound by the covenant;2. The purchaser has notice of the covenant; and3. The covenant touches and concerns the land (i.e., it benefits the covenantor and his successor in their use and enjoyment of the burdened land). Horizontal privity between the original covenanting parties is not required. Horizontal privity means the original parties to a real covenant shared some interest in the land independent of the covenant at the time they entered it (e.g., as grantor and grantee). Horizontal privity is required to enforce the burden of a real covenant at law, but it is not required to enforce the burden of an equitable servitude. A common scheme for development is not required for the burden of a written equitable servitude to run to a subsequent purchaser. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, reciprocal negative servitudes may be implied absent a writing if there is a common scheme for the development of a subdivision and the grantee had actual, record, or inquiry notice of restrictions that do not appear in his deed. The common scheme exception applies only to negative covenants and equitable servitudes; affirmative covenants must be in writing.
Which of the following is required for an equitable servitude to bind a party’s successor in interest?
A Horizontal privity
B Intent
C Vertical privity
B
Intent is required for an equitable servitude to bind a party’s successor in interest. An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it. The burden of an equitable servitude will run to successors in interest if: 1. The covenanting parties intended that successors in interest be bound by the covenant;2. The successor in interest has notice of the covenant (if she paid value); and3. The covenant touches and concerns the land (i.e., it benefits the covenantor and his successor in their use and enjoyment of the burdened land). The benefit of an equitable servitude will run to successors in interest if: 1. The covenanting parties intended that successors in interest be benefited by the covenant; and2. The covenant touches and concerns the land. Horizontal privity between the original covenanting parties and vertical privity between the covenantor and his successor in interest are NOT required to enforce either the burden or the benefit of an equitable servitude. Horizontal privity means the original parties to a real covenant shared some interest in the land independent of the covenant at the time they entered it (e.g., as grantor and grantee). It is required to enforce only the burden of a real covenant at law. Vertical privity also relates to real covenants and means that (i) the burden will run at law if the successor holds the entire durational interest held by the covenantor at the time he made the covenant, and (ii) the benefit will run at law even if the successor holds a lesser estate.
Two neighbors install a common driveway and covenant to be mutually responsible for its maintenance.
If one conveys his property by a deed that does not mention the driveway, is his grantee mutually responsible for maintaining it?
A No, because the grantee’s deed did not contain a written maintenance covenant
B Yes, because the grantee has an easement by necessity in the driveway
C Yes, because the burden of the maintenance covenant runs to successors in interest
D No, because there is no horizontal privity
C
Yes, the grantee is mutually responsible for maintaining the common driveway because the burden of the maintenance covenant runs to successors in interest. If adjoining landowners agree to be mutually responsible for maintaining a common driveway, the burdens and benefits of these covenants will run to successive owners of each parcel. The cross-easements for support, which give each party the right to use the driveway, satisfy the requirement of horizontal privity because they are mutual interests in the same property. Additionally, each promise touches and concerns the adjoining parcels, and the grantee will be held to have notice of the covenant due to the visibility of the common driveway. Thus, even though the grantee’s deed did not contain a written maintenance covenant, he is bound because the burden of the covenant runs with the land. The grantee does NOT have an easement by necessity in the driveway. An easement arises by necessity when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. That is not the case here.
