Covenants

notice- for the BURDEN to run

Under modern recording acts, to be bound by a covenant, a subsequent purchaser for value must have actual, inquiry,, or record notice of the arrangement at the time of the purchase. -because the notice requirement arises under the recording acts, remember that it will protect only purchasers for value. Someone who does not give value may be bound by a covenant at law (not equity) if he has no actual or constructive notice.

Common scheme notice

To be bound by a covenant not in her deed, a grantee must have had notice of the covenants in the deeds of other in the subdivision. Notice may be actual (direct knowledge of covenants, Inquiry (neighborhood appears to confirm common restrictions) or record (prior deed with covenant in grantee's chain of title.)

Vertical privity- for the BURDEN to run

To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenanter at the time he made the covenant.

Equitable servitude- Requirements for the BURDEN to run

1. The covenanting parties intended that servitude be enforceable by and against assignees 2. The successor of the promisor has actual, inquiry, or record notice of servitude and 3. the covenant touches and concerns the land. NO privity of estate is required for an equitable servitude to be enforceable by and against assignees.

Termination of covenants

1. a written release, merger of the benefited and burdened estates, the condemnation of the burdened property.

Requirements for the BURDEN to run

1. intent, 2. Notice, 3. Horizontal privity, 4. vertical privity, 5. touch and concern.

Termination of Equitable servitude

1. written release from the benefit holders 2. merger of the benefited and burdened estate or 3. condemnation of the burdened parties estate.

Equitable servitude- Defenses to enforcement

A court will not enforce an equitable servitude if: a. the person seeking enforcement is violating a simular restriction on his own land. (unclean hands) b. A benefited party acquitted in a violation of servitude by one burdened party c. a benefited party acted in such a way that a reasonable person would believed the covenant was abandoned (estoppel) d. The benefited party fails to bring suit against the violator within a reasonable time (laches) or e. The neighborhood has changed so significantly that enforcement would be inequitable.

Covenants

A real covenant, normally found in a deed, is a written promise to do something on the land or a promise not to do something on the land. real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.

Horizontal Privity- for the BURDEN to run

At the time the promisor entered into the covenant the promisee, the two must have shared some interest in the land independent of the covenant. only concerns the original parties.

Party walls and common driveways

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon her land. Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it. Creation- a written agreement is required by the Statue of frauds for an express creation of a party wall or common driveway agreement, but an "irrevocable license" can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implications or perception. Running of covenants- if a party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of these covenants run to the successive owners of each parcel.

Covenant Remedy

Damages only- collectable from d's general assets. If an injunction is sought the promise must be enforced as a equitable servitude rather than real covenant

Specific situations involving real covenants

Generally, promises to pay money to be used in connection with the land (homeowner' asso. fees) and covenants not to compete run with the land. Radically restrictive covenants are unenforceable.

Requirements for the BENEFIT TO RUN

Intent- the covenanting parties must have intended that the successors in interest to the covenantee be able to enforce the covenant. vertical privity- The benefits of a covenant rul to the assignees of the original estate or any lessor estate. i.e. any succeeding possessory estate may enforce the benefit. touch and concern- if the performance benefits the covenantee and her successors in their use and enjoyment of the benefited land.

Touch and Concern

Negative covenants touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land. Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something, which increases his obligations in connection with his enjoyment of the land.

Common scheme

Reciprocal negative servitudes will be implied only if, at time that sales in subdivision began, the development had a plan that all parcels would be subject to restriction. the scheme may be evidenced by: 1. recorded plat, a general pattern of restrictions or 3. oral representations to early buyers.

Intent- for the BURDEN to run

The covenanting parties must have intended that successors in interest to the covenanter be bound by terms of the covenant. This intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself.

Equitable servitude-

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 the covenant. usual remedy is injunction.

Equitable servitude- creation

covenants contained in a writing that satisfies the Statute of Frauds. There is one exception- Negative equitable servitudes may be implied from from a common scheme for development of a residential subdivision. --Thus if a developer subdivides land, and some deeds contain negative covenants while others do not, the negative covenants will be binding on all parcels provided there was a common scheme of development and notice of covenants.