Covenants

covenants to restrict height, size, location or types of structures

What are four examples of "touch and concern" covenants?

condition ; covenant

Courts do not always follow the language used by the parties to an instrument; they may find that words of _____ were really intended by the parties to operate as a ______. See, e.g., Post v. Weil, 22 N.E. 145 (NY 1889)

one who is not an original party

Horizontal privity cannot exist with respect to _______

personally liable for the burdens of covenants made by a previous owners ; the new holder of the land has made no express promise to assume those obligations

If the applicable legal requirements are met, one who acquires real estate may become ________ even if _________

interest in the land

"covenants running with the land" don't necessarily run with "the land;" rather, they run with the particular _______

enhances the value of another parcel

A covenant touches and concerns the land when, by restricting the use of one parcel, the covenant _____________

the law ought to enforce it

An important implication of the Coase Theorem is that, if a group of landowners can and do negotiate a contract restricting land use to control the impact of externalities, _________

equitable servitude

An otherwise real covenant that a benefitted party is seeking to enforce IN EQUITY ONLY

construction on a lot

Another example of an affirmative restrictive covenant would be to require __________

true

True/False: The Statute of Frauds applies to covenants

NO, because the agreement did not involve a transfer of land interests to one another

Two neighbors, M and N, agree in writing to not let their grass grow too long or leave trash in their yards. Is there horizontal privity? Why or why not?

a voluntary conveyance (e.g., by deed, will, or intestate succession)

Vertical privity exists between parties to _______

1. Assignment of contractual rights 2. Third-party beneficiary

What are the TWO exceptions to the limitations of parties bound to a contract?

(HVTIW - Hairy Venetians took Isaac's wallet) 1. Horizontal privity 2. Vertical privity 3. Touch and concern 4. Intent to run 5. Writing and notice

What are the five elements necessary for the burden of a real covenant to run with the land? (HVTIW)

(IDD - Iqbal don't die) 1. IDENTIFY which parcel or interest in the land is benefitted and which one is burdened by the covenant in question; 2. DETERMINE whether either or both of those parcels or interests have been transferred; 3. DECIDE whether we NEED to determine if either the benefit, burden, or both, run with the land

What are the three steps to a covenant analysis? (IDD)

1. Does the benefit of the covenant run with the benefitted interest? 2. Does the burden of the covenant run with the burdened interest?

What are the two questions you should ask when evaluating covenants?

If a landowner who generates negative externalities and the nearby landowners who are impacted by those externalities are able to negotiate freely with each other, they may be able to enter into a private contract that will produce an economically "efficient" result

What does the Coase Theorem state?

it was intended to run absent contrary evidence, even if the instrument does not expressly mention intent

Today, if a covenant touches and concerns the land, courts will almost always assume that _______ even if _________

refuse enforcement

When a covenant does not purport to regulate externalities, there is a much greater chance that the courts will __________

the estate of the original benefited party to the covenant has passed as a result of a voluntary conveyance to the individual who is seeking to enforce the covenant

vertical privity exists with respect to the BENEFITED interest when __________

the estate of the original burdened party to the covenant passed as a result of a voluntary conveyance to the individual against whom the covenant is now being enforced

vertical privity exists with respect to the BURDENED interest when __________

bill of assurance

what is a "declaration" usually called in Arkansas?

damages or an injunction; termination of the present fee simple estate

The remedy for breach of a covenant is typically either ________, and NOT the ________

private zoning law

The type of land use regulation that states that, when you accepted the deed (for a common interest community (CIC) such as a condo), even though you did not execute the covenants in the declaration at the time they became effective, you became burdened and benefitted by them

restrictive covenant

A "negative easement" in older opinions is just a term that means a _________

"personal" covenant

A covenant that does not run to successors

"real" covenant

A covenant that runs with the land and binds or benefits successor owners

is connected with the use and enjoyment of the land.

A covenant touches and concerns the land if it ______________

1a. Damages and an injunction 1b. A real covenant, not an equitable servitude 2a. A's interest is benefitted, because A gets the benefit of having his neighbor's land restricted to residential use only. 2b. B's interest is burdened, because the covenant places a restriction on B's use of her land. 3a. B's interest was transferred to C 3b. We must analyze whether the burden of this real covenant runs with the land.

A owned a two-acre parcel and sold the western one-acre lot to B while retaining the eastern one-acre lot for herself. The A-B deed, which was recorded, contained a promise that the western lot (B's lot) would be used for residential purposes only. Later, B conveyed her lot to C by a deed that did not mention the covenant in the A-B deed. C began constructing a drive-through coffee shop on the lot. A sued for damages and to enjoin C's construction of the coffee shop. 1a. What remedy or remedies are being sought? 1b. What are we dealing with, based on the remedies sought? 2a. Whose interest is benefited by the covenant? 2b. Whose interest is burdened by the covenant? 3a. Whose interest has been transferred (the benefited interest, the burdened interest, or both)? 3b. With respect to the transferred interest (benefited, burdened, or both), does the benefit/burden run with the land?

the plaintiff has a benefitted interest and the defendant has a burdened interest

A successful action on a covenant cannot be pursued unless _________

whether the ORIGINAL covenantors were in horizontal privity ; whether the CURRENT parties are in horizontal privity

Although horizontal privity cannot exist with respect to one not an original party, the determination of whether this element is met is based on _____________, not ___________

insert covenants in each deed conveyed by the developer

Although it's not preferred, another valid way to create real covenants is not to create a declaration at all, but to ____________

"straitjacket"

Courts worry that covenants restricting the use of the land, especially of indefinite duration, may put real estate in a _______, preventing its use in the future for highly desirable purposes.

the court's desire to perpetuate the intent of the original parties and the desire to avoid tying up land too long or too restrictively

Covenant cases often seem to present a serious tension between _________ and _________

contrary to public policy

It is unusual (though not unheard of) for a court to simply declare a covenant ___________

servitudes

Easements and covenants are generally called _________

burden ; benefit

Every covenant has a _______ and a _________

equitable servitude ; real covenant

Fewer elements need to be proved to enforce an _______ than to enforce a _______

benefit

In a covenant running with the land, this was originally held by the PROMISEE

burden

In a covenant running with the land, this was originally held by the PROMISOR

The contract so closely relates to one or the other (or both) of their interests in the land that it is not the identity of the parties as PERSONS, but rather their status as OWNERS of the land, that justifies enforcing the the contract

In a general sense, we can say that a contract between two owners of land interests will not bind or benefit their successor owners unless _______

injunctions

In both easements and covenants, equitable remedies such as ______ are available

conditions triggering a forfeiture

In instances where a leasehold (or fee simple estate) are subject to a condition subsequent, we can say that the covenants of the lease become _______

declaration ; an instrument containing all of the restrictive covenants and applying them to all of the tracts

In the CIC context, developers typically satisfy the writing and notice requirements by recording a __________ which is __________

incorporated by reference in all of the deeds before the first unit or lot is sold

In the CIC context, once it's made, the declaration will be ______________

Yes, they most certainly are

Is a party who was an original covenantor either benefitted or burdened by the covenants?

easements

Lawyers for historic preservation organizations tend to style their documents as _________ rather than covenants

pay a monthly assessment fee

Members of CICs typically are subject to an affirmative covenant to ___________

restrictive

Most types of covenants are ________

The covenant to restrict the use of the land touches and concerns the land because it concerns the use of the land, and thus satisfies the "touch and concern" element. The covenant to give O free violin lessons has nothing to do with the land, and therefore does not touch and concern the land.

O conveys a lot to A by a deed that contains two covenants - one that A will restrict any uses of his land to residential uses only, and another that A will give O free violin lessons (A happens to be a professional violinist). Do any of these covenants touch and concern the land? Why or why not?

enforce the covenants ; they were never expressly assigned to the buyer

On the "benefit" side, one who buys land that has the protection of covenants made in the past may be able to _____ even if ________

their assignors ; the landlord's and tenant's side ; do not expressly assume those covenants

Persons who take assignments become bound by the covenants made by _____ on both _______, even if they ________

pay money

Probably the original and most widespread affirmative covenant today is the covenant to ________

MY use of my land will be restricted ; to YOU the right to use my land

The distinction between a covenant and an easement is that, in a covenant, a landowner usually says, "I hereby promise you that _______ as follows," and, in an easement, the landowner says "I hereby grant _____ as follows"

If one fee simple owner conveys land in fee simple that is either burdened or benefitted by real covenants executed in connection with the transfer, horizontal privity exists between THESE TWO ORIGINAL PARTIES in the covenant

The general rule of horizontal privity is that _______

"third-party detriment"

The law of contracts may recognize third-party beneficiaries under some circumstances, but there is no such thing as a _________

(RBBTR - Rowdy Brad Bought Two Rifles) 1. What remedy or remedies are being sought? 2. Whose interest is benefited by the covenant? 3. Whose interest is burdened by the covenant? 4. Whose interest has been transferred (the benefited interest, the burdened interest, or both)? 5. With respect to the transferred interest (benefited, burdened, or both), does the benefit/burden run with the land?

When analyzing the enforceability (in law or equity) of a covenant, what SIX questions should you always ask? (RBBTR)

"covenant running with the land"

Whenever one who is not the original promisee is allowed to enforce a contract respecting land, or one who is not the original promisor is bound by it, we say that the contract is a _________

agreed to the covenants contained in it

Whether a deed or lease is signed, and who its signed by, is usually of no importance, because a grantee of a deed is deemed, by accepting delivery, to have _________

is no longer liable for breaches that occur after divesting himself or herself of the property

With covenants between fee simple owners, it is perfectly clear that an owner ________

coexist

With leasehold estates, covenants and conditions often ________

Recording statutes

_______ apply to restrictive covenants

legal enforceability against successors

_________ is absolutely essential to the whole process of negotiating about economic externalities

violate public policy, are unreasonable, discriminate by race, etc

courts may not enforce restrictive covenants if they __________

externalities

economic benefits and detriments that fall upon other nearby landowners whether they like it or not

bind successors in title (until the covenants terminate) if the other elements are satisfied

if the deeds containing the covenants are recorded, the covenants meet the writing and notice elements and will therefore _________