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Flashcards in Property > Real Covenants and Equitable Servitudes Deck (43):
1

What privity must exist for the benefit of a real covenant to run with the land?

Vertical privity.

2

What is a real covenant?

A real covenant is a written promise to do or not do something on the land.

3

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).

4

For the benefit to run, when does vertical privity exist?

Vertical privity exists when the successor in interest holds even a lesser estate than the original covenantee had.

5

For the burden to run, what does vertical privity require?

That the successor hold the covenantor’s entire durational interest.

6

What is horizontal privity?

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).

7

When is horizontal privity required?

Horizontal privity is only required for the burden to run.

8

Is horizontal privity require for the benefit of a covenant to run with the land?

No. It is only required for the burden to run.

9

For the burden of a real covenant to run to successors in interest, the original parties to the covenant must be in __________.

Horizontal privity.

10

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 her successor in interest; and (v) the covenant touches and concerns the land.

11

What is privity of contract?

Privity of contract refers to the relationship between parties to a contract.

12

What is privity of possession?

Privity of possession refers to the relationship between parties in successive possession of real property (e.g. adverse possessors).

13

Must parties be in vertical privity for the burden to run? Why?

The original parties to the covenant need not be in vertical privity for the burden to run. Vertical privity requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time she made the covenant. It does not refer to the relationship between the original covenanting parties.

14

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

15

If the benefited party is violating a similar restriction on her own land, the burdened party would raise the defense of

Unclean hands

16

If the benefited party failed to bring suit against the burdened party within a reasonable time, the burdened party would assert

the suit is barred by laches

17

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

18

What is a cross-easement for support?

An easement implied for adjoining landowners who share a common wall or driveway.

19

bsent an express agreement, courts will treat a common wall or driveway as

belonging to each landowner to the extent that it rests upon her land.

20

Courts also will imply mutual cross-easements for support, with the result that

each party has the right to use the wall or driveway, and neither party unilaterally can destroy it.

21

What is an easement in gross?

An easement in gross is an easement that exists independent of the holder’s ownership or possession of another tract.

22

What is the right of lateral support?

The right to have one’s land supported by the land next to it (e.g., undisturbed by excavations on adjoining land).

23

What is the right of subjacent support?

The right to have one’s land supported by the earth underneath it (e.g., undisturbed by the extraction of minerals below).

24

If a common scheme for the development of a subdivision exists and a grantee had notice of covenants that were not contained in his deed, a court may imply __________.

A reciprocal negative servitude.

25

How is an equitable servitude created?

An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) contained in a writing that satisfies the Statute of Frauds.

26

When can an equitable servitude be enforced against assignees?

Regardless of whether it runs with the land at law, an equitable servitude can be enforced in equity against assignees of the burdened land who have notice of it.

27

When may negative reciprocal servitudes be implied?

1. 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); and2. The grantee had actual, record, or inquiry notice of the covenant.

28

To what does the common scheme doctrine apply?

Negative covenants and equitable servitudes.

29

What is an affirmative covenant?

An affirmative covenant requires the holder of the servient estate to do something on the land, increasing her obligations in connection with it.

30

Will courts imply affirmative covenants?

No. Although a written affirmative covenant may be enforced as an equitable servitude if the plaintiff seeks an injunction rather than damages, courts will not imply such a burden.

31

What is an equitable 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.

32

What is required for an equitable servitude to bind a party’s successor in interest.

Intent.

33

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).

34

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.

35

To enforce either the burden or the benefit of an equitable servitude, what type of privity is required?

Neither Horizontal privity between the original covenanting parties or vertical privity between the covenantor and his successor in interest are required to enforce either the burden or the benefit of an equitable servitude.

36

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.

37

What type of privity is required for the benefit of a real covenant to run to successors in interest?

Horizontal privity between the original covenanting parties.

38

vertical privity for the running of the benefit is satisfied when

the successor in interest holds any possessory estate, even a lesser estate.

39

For the burden of a real covenant to run to a successor in interest, the successor must be in __________ with the covenantor.

Vertical privity

40

Is notice required for the benefit of a real covenant to run with the land?

No. 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.

41

For the burden of a real covenant to run to a subsequent purchaser, she must have

1. Actual or constructive notice of it at the time she acquires the burdened land 2. Horizontal privity between the original covenanting parties3. The requirements for the benefit of the covenant to run with the land (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).

42

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?

Yes, 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.

43

When does an easement by necessity arise?

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.