Real Covenants & Equitable Servitudes Flashcards Preview

Property II > Real Covenants & Equitable Servitudes > Flashcards

Flashcards in Real Covenants & Equitable Servitudes Deck (24):
1

Private promissory obligations
Regarding land use
That are enforceable not only between the original parties but also by and against the original parties’ successors in interest simply because they have succeeded to the original parties’ properties

Real Covenants & Equitable Servitudes

2

Generally authorize an affirmative use of the servient land
Usually impose only a passive obligation on the servient landowner

Easements

3

Generally impose an affirmative obligation on the servient owner

Real Covenants & Equitable Servitudes

4

If all requirements are satisfied, a _______ can be enforced either as a real covenant or as an equitable servitude.

promise

5

An enforceable promise between the original parties that binds successor owners

Real Covenants

6

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors

Real Covenants

7

2-sided promise

Real Covenants

8

the right to enforce the promise

Benefit

9

the duty to perform the promise

Burden

10

promise to perform a particular act

Affirmative covenant

11

a promise not to perform a particular act

Negative covenant

12

Compliance with the Statute of Frauds
Original parties must have had the intent for the covenant to “run with the land” and bind successor owners
The covenant must “touch and concern” the land

Notice to the successor owner

Horizontal privity

Vertical privity

Elements

Real Covenants

13

Must relate to the use, enjoyment, or occupation of real property

touch and concern

14

The original parties to the promise must have been in privity of estate
mutual interest and successive interest standards

Horizontal privity

15

The original party to the promise and the successor must be in privity of estate
The successor must have received the same estate that the original party had, i.e., conveying FSA from A to B

Vertical privity

16

Benefit Side

satute of Frauds
Intent to bind
Touch and concern
Notice
Horizontal privity
Vertical privity

17

Burden Side

Statute of Frauds
Intent to bind
Touch and concern
Vertical privity

18

Definition: an enforceable promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors

Equitable Servitudes

19

Original parties must have had the intent for the covenant to “run with the land” and bind successor owners

Equitable Servitudes

20

the successive owner may be bound by an equitable servitude even if the Statute of Frauds is not met

Common plan exception

21

There was a common scheme or development, such as a subdivision, involving multiple parcels
The developer intended to impose uniform restrictions on all parcels but only some were in fact burdened
All parcels will be bound by the uniform restrictions even if the restrictions do not appear in the chain of title for every lot if the evidence establishes a common plan that a successive owner should have been aware of

Common plan exception

22

May not be terminated by equitable doctrines such as unclean hands, laches

Real Covenants

23

May be terminated by equitable doctrines such as unclean hands, laches

Equitable Servitudes

24

The owner of a property intends to create a servitude that burdens his/her property
The owner enters into a contract or conveyance that satisfies the Statute of Frauds which creates the servitude (or the requirements for the creation of a servitude by estoppel, implication, necessity or prescription are met)
The servitude is not arbitrary, does not unreasonably restrain alienation, does not violate public policy, etc.

A servitude arises when: