Property (JDA One Sheet)

Question 1

Easement

Answer 1

A non-possessory interest in the use of someone else’s land.

Question 2

Easement in Gross

Answer 2

An easement in gross does not benefit the land, but rather benefits a person. One cannot transfer a personal easement in gross, but one can transfer a commercial easement in gross (e.g., utility lines).

Question 3

Easement Appurtenant

Answer 3

An easement appurtenant benefits the land. The dominant estate is the piece of land that is benefited while the servient estate is the piece of land serving the benefit to the dominant estate. The dominant estate transfers to a successive owner automatically. The owner must make reasonable repairs to the easement and may go on the servient estate to do so. A servient estate, however, transfers with notice (actual, inquiry, or record. → Note: there is a strong presumption that recording acts do not apply to implied easements).

Question 4

Easements - Creation of Easements

Answer 4

Easements can be created expressly, impliedly (by prior use or necesity), or by prescription.

Question 5

Termination of Easement

Answer 5

Easements may be terminated in a variety of ways such as by their express terms, written release, merger of the dominent and servient tenements, prescription, estoppel, condemantion, or abandonment. For abandonmnet, mere nonuse of the easement is not sufficient to abandon it. There must be an act of abandonment.

Question 6

Express Easement

Answer 6

There are two requirements for an express easement: (1) it must be in writing and (2) it must be signed by the grantor if it is for over a year (SoF).

Question 7

Easement Implied by Necessity

Answer 7

An easement implied by necessity exists when: (1) there is a severance of a commonly owned parcel; (2) the necessity is strict (landlocked); (3) the necessity exists at the time of the severance and when the easement is sought.

Question 8

Implied Easement from Prexisting Use

Answer 8

An implied easement from preexisting use exists when: (1) there is a previous use from a common owner who subdivides the land; (2) the use was continuous; (3) the use was reasonably necessary for the use and enjoyment of the benefited property; and (4) use was apparent (not hidden).

The previous use by the common owner who subdivided the land must be to the benefit of the now dominant property.

The period in time examined when referring to “previous use” is prior to the land being subdivided and conveyed.

(CRAP - continuous, reasonably necessary, apparent, previous use)

Question 9

Easement by Prescription

Answer 9

An easement by prescription requires that use be (1) continuous; (2) hostile (without permission from the true owner); (3) actual; (4) open and notorious (visible); and (5) it must go on for the statutory period. (Think: elements of adverse possession w/o exclusivity requirement)

Question 10

Termination of Easement - Merger

Answer 10

Merger occurs when a person or entity who owns the easement acquires title to the servient estate or when the owner of the dominant estate attains ownership of the servient estate. The easement is then extinguished. After a merger terminates an easement, the easement does not revive if the two estates are later separated.

Question 11

Termination of Easement - Abandonment

Answer 11

Abandonment requires intent and an act. A mere statement is not enough. Nor is mere nonuse.

Question 12

K of Sale - Equitable Conversion

[what if something happens to the property between when K of sale is signed but before deed is delivered?]

Answer 12

Before a deed is delivered, the contract of sale is signed. Under equitable conversion, as soon as the contract is signed (but before closing), the buyer’s interest is real property (the land he contracted to buy) and the seller’s interest is personal property (money he will get from the sale). Thus, the risk of loss remains on the buyer under equitable conversion, even if the seller remains in possession and control of the land.

Question 13

K of Sale - Equitable Conversion

[What if a party to the K dies after the K of sale is signed but before the closing?]

Answer 13

The K will still go through. The seller’s interest is personal property (money from sale to seller’s estate). The buyer’s interest is real property (buyer gets the real property).

Question 14

When does title pass?

Answer 14

Closing date is when title “officially” passes

Seller must give marketable title on the closing date (no need to do so before). If seller not able to give marketable title, the seller has a reasonable time (e.g. a couple of months) to sure up any defects so long as K or circumstances do not indicate that time was of the essence.

Question 15

LSK - Merger

Answer 15

On the closing date, the contract for sale merges into the deed. Once this happens, the buyer can only sue on the deed.

Question 16

Validity of a Deed

Answer 16

A valid deed requires (1) formalities, (2) proper delivery (keep in mind presumptions of delivery/non-delivery), and (3) acceptance

Question 17

Deed Formalities

Answer 17

A deed must (1) ID the PTs (buyer must be alive @ time of closing. If buyer dies before closing, a new deed must be made to his estate); (2) describe the land (just enough to ID the property); (3) have words of grant; and (4) be signed by the grantor (b/c of SoF).

A deed must also be delivered. Delivery is a question of intent to pass presently. It doesn’t mean that physical delivery must take place.

Remember: a deed does not have to be recorded to be valid. It does not need to be given in exchange for consideration. It does not need a seal.

Question 18

Deed - Presumptions of Delivery

Answer 18

Delivery is presumed if (a) the deed is given to the grantee or (b) the deed is recorded.

Question 19

Deed given to Grantee w/ oral condition

Answer 19

The condition is ignored when the deed is unconditional on its face.

However, oral conditions are not ignored when they are (a) to show that the grantor did not intend to deliver the deed at all or (b) if the deed is delivered to a 3rd party and delivery is to made once a certain condition occurs. In this circumstance, delivery will “relate back” to the day the grantor delivered the escrow.

Question 20

Deed - Presumptions of Non-Delivery

Answer 20

Delivery is presumed to not have occurred if the deed is: (a) In the grantor’s possession or (b) Merely given to grantor’s agent (b/c grantor probs has the power to get it back)

Question 21

Can delivery be canceled?

Answer 21

No. To give property back, one must reconvey the deed and comply with the formalities required.

Question 22

Acceptance of a Deed

Answer 22

Acceptance of a deed is presumed, but it can be rebutted by facts that show otherwise.

Question 23

Quitclaim Deed

Answer 23

Grantor promises nothing and grantee gets whatever grantor has. Grantee cannot successfully sue on the deed.

Question 24

Warranty Deed

Answer 24

Once deed is delivered, grantee can sue on the deed only (not on the K). In a warranty deed, the grantor gives six covenants that are implied unless specifically excluded

Upon breach of any of these 6 warranties, a buyer is entitled to the consideration received by the seller when they sold the land.

Under CL, remote grantees can sue only on future covenants, but some jurisdictions do not follow the CL rule.

Question 25

What are the 3 Present Covenants in a Warranty Deed?

[More likely tested]

Answer 25

(PRESENT) - Present covenants are those given “presently” at the time the deed is handed over, and if not fulfilled, they are also breached at the time the deed is handed over. Present covenants do not run w/ the land, and only the grantee that the grantor conveyed the property to can sue on them. The three types of present covenants include:

Right to Convey (“I can sell it”) - grantor promises that grantor can convey title (someone else doesn’t have the right of first refusal)

Covenant of Seisin (“I own it”) - Grantor promises that grantor has title and possession

No Encumbrances (“I can sell it without any strings attached”) - Grantor promises that there are no easements, liens, or encumbrances on the property that are not stated in the deed

Question 26

What are the 3 future covenants in a Warranty Deed?

Answer 26

FEWture Covenants include:

1. Covenant of Further Assurances (“Once I convey title, you will not be disturbed”) - grantor states that if he forgot to do something to pass title (e.g. sign something or give something necessary to buyer), he will do so
2. Covenant of Quiet Enjoyment (“If you are disturbed, I will defend you”) - grantor promises that grantee will not be disturbed by a third party asserting a valid claim
3. Covenant of Warranty (“After I defend you, I will make it right”) - grantor will defend grantee if there is such a third-party claim

Question 27

Implied Warranty of Habitability

Answer 27

When a new home is purchased from a developer, there is an implied warranty of fitness and habitability. A buyer may recover damages for losses resulting from defective or poor construction.

These defects must be (1) discovered within a reasonable time and (2) cannot be attributable to later changes in the structure or normal deterioration.

Question 28

Does a seller have to disclose defects?

Answer 28

Ordinarily, seller does NOT have to disclose defects unless they are: (1) not obvious; (2) he knows or should know of them; AND (3) the defect is not serious.

However, seller cannot actively conceal or misrepresent defects even if there is an “as is” clause

Question 29

Recording Acts: Step 1

Common Law Rule

Answer 29

Under the CL rule, a grantor can convey only those rights that the grantor had at the time of conveyance. Thus, common law follows the “first in time, first in right” principle. All states have recording statutes that change the results of the common law principle.

Question 30

What kind of Recording Act is This?

“ A conveyance of an interest in land is not valid against any subsequent purchaser for value without notice unless it is recorded” “

“No conveyance is valid against a subsequent bona-fide purchaser who has no notice of the original conveyance, unless the conveyance is first recorded.”

Answer 30

Notice statutes protect subsequent bona fide purchasers for value who take without notice of the earlier transaction.

Focus = Was the second buyer a BFP? (AKA Was the second buyer on any notice of the previous sale and did they pay a fair price?). If so, 2nd buyer wins.

Question 31

What kind of Recording Act is This?

“No conveyance of an interest in land is valid against any subsequent purchaser for value without notice unless it is first recorded.”

“No conveyance is valid against a subsequent bona-fide purchaser who has no notice of the original conveyance AND who has recorded the deed to has conveyance first”

Answer 31

Race-Notice Statutes protect subsequent bona fide purchasers for value who take w/o notice and are the first to record

Focus = Was the second buyer a BFP and did they record first? If yes, second buyer wins. If no to either of these, first buyer wins.

Question 32

Race-Notice

Answer 32

A race-notice act protects subsequent purchasers who are first to record. These are v rare.

A pure race statute will not mention notice in the statute.

Actual and inquiry notice do not matter here. Only record notice.

Question 33

Who is protected under a recording statute?

Answer 33

Subsequent

Purchasers for value -

These are: mortgagees, anyone who pays valuable consideration. These are NOT: judgment creditors, donees, heirs or devisees

Who take w/o Notice → Three types of notice = AIR (Actual, Inquiry, Record)

Question 34

Wild Deeds

Answer 34

Proper recording occurs when recording links the deed to the last owner of record. If the recording is unconnexcted to the chain of title (does not connect to someone who is a recorded owner), then it is wild.

(e. g., due to a clerk’s filing error; deeds recorded too late or too early).
* Example - EJ sells land to Austyn, a BFP for value. Austyn does not record. Then EJ conveys the land to Brian, a BFP for value, and Brian records. Austyn finally records. Then Brian sells the land to Caroline. Does Caroline have record notice of Austyn’s interest? → No. Austyn recorded too late outside the chain of title. When Caroline does her due diligence she’s going to look up Brian and the chain that came before him and she will not see Austyn in the chain of title–thus Austyn’s recording will not give notice to Caroline.*

Question 35

Shelter Rule Exception

Answer 35

Under the Shelter Rule, one who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against, even if the transferee had actual notice of a prior conveyance

This protects donees, heirs, or devisees of BFPs who cannot qualify as BFPs and would not otherwise receive protection under notice or race-notice statutes

Question 36

Estoppel by Deed

Answer 36

Under Estoppel by Deed, a grantor who conveys title to land he does not then own is estopped from subsequently acquiring the same land. Instead, title automatically passes to the benefit of grantee.

This prevents one from conveying land they do not presently own and later validly acquiring it (e.g., through a will)

Example: EJ owns property. Austyn, who does not own the property sells it to Caroline and Caroline records. Then, EJ actually sells the property to Austyn and Austyn records. → In a dispute between Austyn and Caroline, Caroline wins b/c under estoppel by deed, Austyn (who sold land w/o owning it) is estopped from denying the validity of the sale.

Question 37

Adverse Possession

A Hoe ON Every Corner Stripping

Answer 37

Actual

Hostile

Open & Notorious

Exclusive

Continuous

Statutory Period

Question 38

Adverse Possession

Actual

Question 39

Adverse Possession

Hostile (and under claim of right)

Answer 39

All jurisdictions require the adverse possession to be hostile to the true owner’s interest – in other words without the true owner’s permission.

However, states vary in their approach to claim of right. The majority of states require only that the property be used without the true owner’s permission, regardless of the adverse possessor’s intent. A minority of states either follow a “bad faith” approach, which requires the adverse possessor to be aware that they have no legal right to be on the property, or they follow a “good faith” approach, which requires that the adverse possessor have a good faith belief that they own the property.

Question 40

Adverse Possession

Open & Notorious

Answer 40

Open and notorious possession is possession that would put an owner on notice of the adverse possession upon reasonable inspection of the land (AKA must be reasonably obvious). The owner need not actually know of the trespasser’s use.

Question 41

Adverse Possession

Exclusive

Answer 41

Exclusivity requires that the adverse possessor exclude others from possession as if they were the true owner. That doesn’t necessarily mean that others can’t use the property; it simply means that the adverse possessor does not share control of the property with anyone else

Question 42

Adverse Possession

Continuous

Answer 42

For possession to be continuous, an adverse possessor does not need to maintain constant possession of the property, but any gaps in possession must be consistent with how the true owner would use the property.

Question 43

Adverse Possession

Statutory Period

Answer 43

Possession must go on for the statutory period (most falling within a period of 10-20 years).

Future interests — The statute of limitations does not run against future interest holders until the interest becomes possessory

Adverse Possessor vs. BFP - If the adverse possessor fails to record their interest in the land and a bona fide purchaser buys the land and complies with the recording act, the adverse possessor will prevail over subsequent bona fide purchaser because there is no document that the interest holder could record.

Question 44

Adverse Possession - Tacking

Answer 44

Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if that possession was by different adverse possessors. Tacking is permitted if there is a transfer in property (descent, devise, or by deed purporting to convey title) even if the transfer is not in writing so long as there are no gaps between periods of adverse possession and there is no ouster or abandonment.

Question 45

Adverse Possession - Tolling

Answer 45

If the true owner of the land has a disability (JIM in jail, has a mental illness, or is a minor (under 18)) at the time the adverse possessor enters onto the land, the disability will “toll” (extend) the running of the clock for adverse possession. If, however, the disability occurs at some later time during the statutory period, the statute will not toll and will continue to run.

Question 46

Term for Years Lease

Answer 46

A “term of years” is a tenancy for a specific period of time (not necessarily “years”). It can be for an uncertain period of time (e.g., until we have a female president”) or it can be oral, unless it is for over a year (in which case, it must be in writing). A term of years expires automatically on the end date.

Question 47

Periodic Tenancy

Answer 47

A periodic tenancy has no fixed end date. It simply repeats until one party gives valid notice. A periodic tenancy can be created either by (1) express agreement; (2) implication (where the lease contains no set termination dates, payment in intervals); or (3) by operation of law via (a) an oral lease that violates the Statute of Frauds (LL accepts payment) or (b) a tenant who remains on the property after his tenancy terminates. Valid notice equal to the rent payment term (CL = 6 months for 1 yr lease) is required to temrinate a periodic tenancy.

Question 48

Assignment

Answer 48

When a tenant transfers ALL of his remaining lease interest to a third-party. A lease may be freely assigned UNLESS the lease states otherwise. An assignment CANNOT be for a longer period than the remaining lease term.

Question 49

Assignment: Liability for Rent / Breach

Answer 49

Assignee → liable to the landlord for rent and all other covenants that run with the land (privity of estate w/LL).

Assignor (Original Tenant) → also remains liable for rent (privity of contract).

Landlord → maintenance obligation runs with the land (privity of estate).

Question 50

Landlord’s Consent for Assignment & Silent Consent Clauses

Answer 50

If the lease requires landlord’s consent, consent MUST be obtained.

Landlord waives the right to enforce a provision prohibiting assignment if he accepts rent from the assignee.

If a lease silent on the Standard of Consent (a silent consent clause):

Most States → landlord may withhold consent for any reason.

Some States → landlord MUST have a reasonable basis for withholding consent.

Question 51

Sublease

Answer 51

When a tenant (sublessor) transfers ONLY SOME of his remaining lease interest. Tenant may freely sublet UNLESS a provision in the lease states otherwise.

A sublease CANNOT be for a longer period than the remaining lease term

Question 52

Tenant’s Duties

Answer 52

Pay Rent

Duty to Repair (No commit waste)

Duty to not use property for illegal purposes

Liability to 3Ps in tort (Tenant is liable even if landlord promised to make repairs)

*Remember under modern rule, LL must try to mitigate damages

Question 53

Tenant Abandonment & Surrender

Answer 53

Abandonment - If tenant abandons the property and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses (depends on state law). LL can either sue for damages or treat as a surrender (which excuses any future rent obligations)

Surrender - an agreement to end a lease early. Landlord must clearly accept surrender of the lease (unless otherwise agreed). An attempt to end the lease early (such as leaving the keys) DOES NOT constitute a surrender unless landlord clearly accepts.

If landlord:

ACCEPTS the surrender → tenant’s duty to pay rent (after the acceptance) ends.

DOES NOT accept the surrender → tenant is deemed to have abandoned and is liable for damages.

Question 54

Sublessor & Sublessee’s Liability

Answer 54

Sublessee is NOT liable to the landlord for rent or other covenants (there is no privity of estate).

Sublessor (original tenant) remains liable to landlord for rent (privity of contract).

Question 55

Differences Between Eviction vs. Implied Warranty of Habitability

Answer 55

Constructive Eviction (commercial or residential leases) - if T can prove LL breached a duty to T, this breach caused a loss of substanital use and enjoyment of the premises, and the T vacated the premises w/in a reasonable time after giving the LL adequate notice.

Implied Warranty of Habitability (residential leases only) - If premises uninhabitable, T has several remedies (vacating premises, suing for damages, offsetting damages, etc.)

Question 56

Constructive Eviction

(Rental AND Commercial Leases)

Answer 56

1) Landlord breached a duty to tenant;
2) The breach caused a loss of the substantial use and enjoyment of the premises;
3) Tenant gave landlord notice of the condition;
4) Landlord failed to remedy the condition within a reasonable time; AND
5) Tenant vacated the premises.

*If constructive eviction occurs, tenant may terminate the lease, seek damages, & may avoid rent for time constructively evicted.

Residential Leases → Landlord HAS a duty to (1) repair common areas, and (2) warn of latent defects that create a risk of serious harm that the landlord knows of (or should know of).

Commercial Leases → Landlord has NO duty to repair (unless specified in the lease agreement).

Question 57

Implied Warranty of Habitability

Answer 57

Landlord MUST provide a place to live that is habitable → reasonably suitable for human needs. − Implied in every residential lease, but typically does not apply to commercial leases.

If warranty is breached, tenant may:

a) move out & terminate the lease;
b) withhold or reduce the rent;
c) repair the issue & deduct the cost; OR
d) remain on the premises & sue for damages.

Question 58

The Fair Housing Act

Answer 58

This act disallows discrimination in housing sales or rentals on the basis of race, color, religion, sex, familial status, or national origin (but not occupation). This does not apply if the owner occupies one of the units in a multiple-unit dwelling containing no more than 4 units occupies by persons “living independently of one another.” However, an owner may not place a discriminatory ad. If such an ad is made, the owner and the publisher will have violated the act.

Question 59

Mortage

Answer 59

Mortgages have been tested with more frequency. A mortgage is an interest in land created in an
instrument providing security for the performance of a duty or the payment of a debt. The
mortgage must be signed and in writing to satisfy the statute of frauds. The parties to a
mortgage are the mortgagor (who is the debtor) and the mortgagee (who is the lender, e.g., a
bank). If the mortgagor does not pay the mortgage debt on time, the mortgagee may claim title
to the property or sell the property and keep the proceeds to satisfy the debt. Any obligation
capable of being reduced to its monetary equivalent may be secured by a mortgage.

Question 60

Mortgages - Lien Theory

Answer 60

Under the lien theory, a mortgage does not create a title or estate, but is merely a lien on the
property. The mortgagor retains all rights to the property until he is adjudged to be in default.

Question 61

Mortgages - Title Theory

Answer 61

Under the title theory, the mortgagor essentially conveys a determinable fee to the mortgagee.
The satisfaction of the obligation underlying the mortgage restores title to the mortgagor. Upon
the mortgagor’s default, the mortgagee is entitled to immediate possession of the property.

Question 62

Who is liable on a mortgage when title to the property is transferred?

Answer 62

A mortgagor (homeowner) can transfer title to the property. However, the mortgage will remain on the property and the mortgagor is still personally liable on the note. Generally, a new transferee who takes “subject to” the mortgage is not personally liable. However, if the transferee “assumes” the mortgage, he is personally liable along with the original mortgagor.

Some jurisdictions say that if the transferee pays the mortgage payments, he impliedly assumes the mortgage, but other state reject this presumption.

A novation occurs if the initial mortgagor, the new transferee, and the mortgageee all agree that the mortgagor is no longer liable and the transferee assumes all of the mortgagor’s duties.

Question 63

Acceleration Clause

Answer 63

An acceleration clause in a mortgage instrument provides that the entire outstanding debt
becomes due when a default occurs. If the mortgagee properly accelerates the loan, the
mortgagor must then pay the full amount to redeem the property.

Tender of the late payment will not automatically avoid foreclosure.

Question 64

Joint Tenancy Creation

Answer 64

Joint Tenancy: Creation – created when 4 unities are present → Unity of (1) time, (2) title (same instrument), (3) interest, AND (4) possession.

MUST have clear express intent to create a Joint Tenancy with a right of survivorship (i.e. deed states “as joint tenants”, “right of survivorship”).

Question 65

Joint Tenancy - Severance

Answer 65

FOUR ways to sever (G-SAM)

(1) Giving it away during life (even in secret);
(2) Signing K of sale (severance occurs on the day signed);
(3) Actual foreclosure (on the date of the judicial sale) by a creditor; OR
(4) Mortgage in a title theory state. Wills do not sever joint tenancies.

If JT conveys interest to a 3P → that party takes property as a TIC.

If only 2 joint tenants → JT = severed.

If 2+ JTs → JT remains, but only among the other JTs (new tenant = TIC with remaining JTs)

Question 66

What happens when JT takes mortgage out on interest?

Answer 66

Lien theory (majority) → when a person executes a mortgage, they are only giving creditor a lien on their property. Thus, no unities are severed, and the JT continues. Severance will only occur upon an actual foreclosure sale following default.

Title theory state (minority) → when a person executes a mortgage, they give creditor title to the property, thus severing the joint tenancy. As a result, mortgagor-tenant becomes TIC w/ the other JTs.

Question 67

Zoning

Answer 67

A state may enact zoning regulations to control the use of land for the health, safety, morals, and welfare of its citizens. The Supreme Court has found that zoning is a constitutional exercise of state power. So long as the regulation does not infringe on a constitutionally protected area, a court will find for the government in a zoning dispute unless there is clear error in how a jurisdiction has applied its zoning regulation, or a clear due process violation. Only government officials can enforce zoning ordinances (e.g. no notice of zoning restrictions, hearings w/o party’s participation, etc.). Here…

Question 68

Zoning - Variance

Answer 68

A variance from a zoning ordinance may be granted if the property owner shows he has a unique hardship.

Question 69

Zoning - Prior Non-Conforming Use

Answer 69

Many zoning ordinances protect or “grandfather in” a pre-existing use. However, the pre-existing use is no longer protected if: (1) the property is sold to a new purchaser; or (2) the nonconforming use is extended or intensified in a way that constitutes as a “substantial change.” Any doubts are resolved against the change.

Question 70

Covenants & Servitudes

Answer 70

Covenants and servitudes restrict how an owner can use his land. They are written promises to do or not do something on the land. They are more powerful than contracts because they do not only bind the original parties, but may also bind future owners of the land.

Question 71

Real Covenant

(“suing at law”)

PINT

Answer 71

A plaintiff sues under a theory of breach of a real covenant if he wants money damages. For a real covenant to bind successors one needs (PINT):

(1) privity (horizontal and vertical privity for the burden to run and vertical privity for the benefit to run),
(2) intent for the covenant to bind future successors,
(3) notice to the person the covenant is being enforced against, and
(4) the covenant must touch and concern the land (make it more valuable or useful).

Question 72

Horizontal Privity

Answer 72

Horizontal privity means that the original owners had, at some point, a shared interest in the land. It is found when there is a (a) grantor-grantee relationship, (b) a landlord-tenant relationship, or [c] a mortgagor-mortgagee relationship.

Horizontal privity is not present if two neighbors simply agree on a covenant.

Question 73

Vertical Privity

Answer 73

Vertical privity looks to the successor in interest from one of the original parties. For the burden to run, the successor in interest must have received the entire durational interest held by the covenantor at the time he made the covenant (e.g. a lease will not suffice if the covenantor has a fee simple). For the benefit to run, only vertical privity is needed, but it does not matter whether the holder of the dominant estate is transferring all or part of their interest.

Question 74

Equitable Servitude

(suing “in equity”)

TIN

Answer 74

A plaintiff sues under a theory of equitable servitude if he wants an equitable remedy (such as an injunction). For an equitable servitude to bind successors, one needs (TIN - everything a real covenant requires except privity): (1) touch and concern (the equitable servitude must touch and concern the land - make it more valuable or useful); (2) intent for the equitable servitude to bind future successors, and (3) notice to the person the equitable servitude is being enforced against.

Question 75

Reciprocal Negative Servitude

Answer 75

This arises when a person (usually a developer or someone who owns several lots of land) places a servitude on the lots that he grants. The requirements necessary to create a reciprocal negative servitude include: (1) intent to create a common scheme or plan (e.g. intent can be proven by showing building plan, recorded plat, general pattern, etc.) and (2) the grantee has notice (actual, inquiry, or record). Any owner/neighbor in the subdivision can enforce a reciprocal negative servitude if the scheme existed at the time he or she purchased his or her lot.