Real Covenants Flashcards
Real Covenant
agreement/promise that** runs with the land **and can be affirmative (require burden party to do something) OR
NEGATIVE (restricts how land can be used)
enforced by actions at law, money damages
Requirements for Burden to Run w Land
1)written document complies with SOF
2)horizontal privity: when there is shared interest in property at time covenant is created (landlord-tenant/mortgageor-mortgagee)
3)vertical privity: if original party transfer entire estate to a subsequent owner
4) intent: original parties to covenant must intend for it to run w land and bind subsequent owners
5)** touches and concerns : when covenant acts as a requirement/restricting affecting value or use of land
6)Notice**: to enforce on a subsequent owner, they must have actual notice, inquiry notice or constructive notice
Benefit to run w Land
1) written
2) vertical privity (transfered the estate to subsequent owner)
3) intent: original parties intend for it to run w land
4) touches and concerns w land: exist when Covenant act as a requirement or restricting affecting value or use of land.
Termination of a Covenant or Servitude
1) release
2) abandonment
3) merger
4) prescription
5) condemnation (eminent domain)
6) changed circumstances
Termination
Release
occurs if parties execute a subsequent writing that complies w/ SOF that expressly releases the right to covenant
Termination
Abandonment
Occurs if owner of right
1) intends to terminate covenant and
2) acts in a way to termiante covenant
Termination
Merger
occurs if title to parcels of land burdened and benefitted by covenant are acquired by same owner
Termination
Prescription
occurs if holder of right fails to protect the interest for a statutory period
Termination
Condemnation
EMINENT DOMAIN
occurs if government takes property that is subject to a covenant
Termination
Changed Circumstances
occurs if there is a substantial change that affects all benefitted properties (purpose cant be achived bc its lose usefulness)
