Covenants Running with the Land
Significance of the Sanborn case
--prohibited Sanborn from building a gas station on a residential lot because of restrictive easements in the property --Implied Reciprocal negative easement doctrine- a restrictive covenant that applies to a split of a lot applies to the other parcel as well.
Covenants v. Easements
-Covenant- An agreement to do or not to do something on one's land- ex: not to move a mobile home onto one's land -Affirmative easement- right to use someone else's land -Negative Easement- the same as a covenant
Real Covenants v. Equitable Servitudes
1. A real covenant is a covenant enforceable at law 2. An equitable servitude is a covenant enforceable in equity 3. "at law" includes "in equity" but not vice versa
What is required for a burden to run with the land?
1. It must be in writing and there must be notice 2. There must be intent 3. Covenant must touch and concern 4. There must be horizontal privity 5. There must be strict vertical privity
Test for Touch and Concern
1. Physical condition and use of land? 2. Limits on operation of specific businesses on land? 3. Provision of utilities or services on land? 4. An affirmative covenant to pay money?
Difference between conditions and covenants with fee simple
1. To A as long as A doesn't move a mobile home onto the property. (Fee simple determinable). If A breaks this condition, O has FSA and A's interest is forfeited. 2. To A and A covenants not to move a mobile home onto the property. A has a fee simple subject to a covenant. O has a right to enforce the covenant b/c they're the promisee of the covenant. If A does, O can sue for injunction or damages.
For Benefit to run at law
1. Touch and concern (benefit covenantee and successors in use and enjoyment of benefited land) 2. Majority of states: no horizontal privity to enforce 3. Vertical privity (strict or relaxed) 4. Intent 5. Writing
AR on restrictive covenants
Ark Code Ann. 18-12-103- No restrictive covenants affecting the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive covenant is executed by the owners of the real property and recorded.
Significance of the Neponsit case
Burden is on the fee simple owners to pay condo association fees, even if the servient tenements enjoy the benefits. This is because the condo fees touch and concern.
How are amendments to covenants handled?
Courts will also enforce uniformity when amendments are made to the covenant Amendments and waivers by the developer: developers frequently reserve the right to amend the declarations of covenants they file, or to grant waivers for noncompliance.
Significance of Shelly v. Kraemer
Courts will not enforce a restrictive covenant that discriminates on the basis of race because it is unconstitutional. See also Fair Housing Act.
significance of the Knowles case
For a restrictive covenant to be enforced against a subsequent purchaser, it has to be recorded in chain of title. AR statute says if it is not in chain of title, then the parties are not bound by it.
How are subdivisions formed today?
Developer gets permission to record a plate of the undeveloped land. Developer then begins building and selling houses. Home owners become automatic members of the HOA.
For benefit to run- Equitable Servitude
Intent Touch and Concern Writing
Significance of the Warren case
RULE: When a developer sells property for single family use and makes oral representation of such, he is bound by that covenant. -The developer was not allowed to build duplexes in the subdivision
Difference between conditions and covenants with a lease
When the tenant covenants not to do something, the actual result is that the landlord may terminate either b/c of statute or a covenant in the lease saying they can. Has the effect of being a condition.
Vertical Privity
relationship between original parties and individuals who obtain a new covenant. (ex: a lessee in LL/T)
Horizontal Privity
relationship between the original parties to the covenant L1 ---> T1
