RESTRICTIVE COVENANTS

The one equitable defense to enforcement of an equitable servitude (Only One)

Changed Conditions. The changed circumstnaces alleged by the party seeking release from the terms of an equitable servitude must be: so pervaisive that the entire area has changed. I.e. you are bound by terms of description

Covenants can be _________ and _____________.

Covenants can be NEGATIVE and AFFIRMATIVE.

Two Questions necessary to determine when the covenant will run with the land, in other words, when it is capable of binding successors?

First: does the burden of A's original promise to B run from A to A-1? Second, does the benefit of A's promise to B run from B to B-1? Start with burden first, always tougher to establish.

Courts are split as to record notice

Some courts take the view that a subsequent buyer is on record notice of the contents of a prior deeds transferred to others by a common granter. The BETTER view, taken by other courts, is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor.

Better View as to Record Notice

The BETTER view, taken by other courts, is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor. Less burdensome to B's record searcher.

Covenant

The covenant is a promise to do or not do something related to land. Its a contractual limitation or promise regarding the land, not the grant of a property interest.

Equitable Servitudes

The equitable servitude is a promise that equity will enforce against successors.

What is never good enough for changed conditions defense to equitable servitude enforcement?

mere pockets of limit changed courts will grant request only to extent you demonstrate so pervasive to entire area has changed or character of has changed

Horizontal Privity

the nexus between A +B, the original parties, share succession of estate. horizontal privity's absence often is barrier to the covenant running.

What does "Touch and Concern the Land" mean?

the promise must affect the parties as landowners and not simply as members of the community at large.

The General Common Scheme Doctrine: 2 Elements

(1) When the sale began, the subdivider (A) had a general scheme of residential development which included defendant's lot. (2) The defendant lot-holder (B) had notice of the promise contained in the prior deeds.

Examples of restrictive covenants

A promise not to build for commercial purposes A promise not to paint my shutter's white promise not to have any pets on site Promise not to place trash on my balcony Etc

Affirmative Covenants

A promise to do something related to the land.

Easement v. Covenant

A covenant= a contractual limitation or promise regarding land. An easement=grant of a property interest

Who must have notice for the BURDEN of the covenant to run with the land?

A1 must have notice of th promise when she took.

What are the three forms of notice potentially imputed to the defendant lot-holder? Think: Michael Jordan.

A: Actual notice: D had literal knowledge of the promise in prior deeds. I: Inquiry notice, the neighborhood confirms to the common restriction. Synonomous with the lay of the land. form of constructive notice to be imputed to buyers. R: Record notice, meaning the form of notice sometimes imputed to buyer on the basis of public record.

Why are restrictive covenants so common?

Because negative easements are so limited in scope. L A S S (light, air, support, streamwater from an artificial flow).

What is the difference in elements between establishing the BURDEN v. BENEFIT to run?

Benefit does not require notice or horizontal privity. Burden: Writing, Intent, Touch and Concern the Land, Both Horizontal and Vertical Privity, Notice Benefit: Writing, Intent, Touch and Concern the Land, Vertical Privity

What does it mean to "run with the land"?

In covenant parlance, one tract is burdened by the promise and another is benefited.

The equitable servitude is accompanied by which form of relief?

Injunctive Relief

Restrictive Covenants

Most covenants will be negative (restrictive). A promise to refrain from doing something related to the land.

Is privity required to bind successors to an equitable servitude?

NO. PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS TO AN EQUITABLE SERVITUDE. Not concerned with the law-based formalities or rules to covenants.

On an exam the same set of facts could seem to give rise to either covenant or an equitable servitude. How will you know which analysis to apply?

On the basis of remedy Plaintiff seeks. If plaintiff wants money damages: construe promise as a COVENANT. --> Covenant is a legal device, it takes remedy at law. If plaintiff wants an injunction, construe promise as an EQUITABLE SERVITUDE. --> equitable servitude: takes equitable remedy, injunction.

Examples of affirmative covenants

Promise to maintain our common fence Water our common guarden

Succession of Estate

Requirement that parties be in succession of estate for horizontal privity, meaning that they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship when the covenant was created.

Negative Covenants are known as __________ _____________

Restrictive Covenants

Creation of An Equitable Servitude (Think: LBJ)

To create an equitable servitude that will bind successors: W: Writing. Generally, but not always, the OG promise was in writing. I: Intent. OG parties intended that the promise would be enforceable by and against assignees. (liberally enforced). T: Touch and concern: the promise affects the parties as landowners. N: Notice. The assignees of the burdened land had notice of the promise. ES: Equitable Servitude

The Implied Equitable Servitude -- The General Common Scheme Doctrine

Under the common scheme doctrine, teh court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. Reciprocal negative servitude means an implied equitable servitude.

Vertical Privity

Vertical privity refers to the nexus between A and A1. Much easier to satisfy than horizontal privity. It simple requires some nonhostile nexus, such as: contract, devise, or descent.

For the BURDEN of a Covenant to Run:

W- in writing I- intended that the covenant would run (courts generous in finding requisite intent) T- touch and concern the land H- horizontal and vertical privity. both are required. N-notice

Does the benefit of a covenant run with the land?

W: in writing I: parties intended that benefit would run T: touch and concern the promise effects the parties as landowners. V: vertical privity. requires some non-hostile nexus between B and B1.

When is the only time that vertical privity will be absent?

When A1 acquired her interest through adverse possession.

Covenants to pay money to be used in connection with the land (such as homeowner's association fees) and covenants not to compete

touch and concern the land