Restrictive Covenants

Equitable Defenses to Enforcement (Only for equitable servitudes)

1) Unclean hands defense 2) Acquiescence (eg, P let neighbor on other side do same thing) 3) Latches (P sat by while D build the office building and is only complaining after completion) 4) Estoppel (P said earlier that he didn't mind)

For the BURDEN to run against a successor-in-interest, what kind of privity do you need?

BOTH horizontal AND vertical

When is there vertical privity?

Between those who subsequently obtain the property subject to the covenant and the original party from whom they got the property. Subsequent owner must take FULL estate of the one up the line

What is an equitable servitude?

When someone breaks the covenant and the plaintiff wants an injunction

What is a covenant at law?

When someone breaks the covenant and the plaintiff wants money damages

When is there horizontal privity?

When there is a conveyance of the property between the original parties to the covenant

What is required for a Mutual Rights of Enforcement (Reciprocal negative servitude)?

1) Intent to create a servitude on ALL the land in the subdivision (found in the common building plan) 2) Notice

For the BENEFIT to run in favor of a successor-in-interest, what kind of privity do you need?

ONLY vertical privity

How can a reciprocal negative servitude be terminated?

1) Release 2) Unity of ownership 3) Changed conditions - ALL OR NOTHING (can't scrap the mutual covenant unless all lots in the subdivision are affected by the changed conditions)

How does one get notice for a mutual rights of enforcement covenant?

1) Actual Notice 2) Record Notice - where the restriction is in the direct chain of title 3) Inquiry Notice - meaning that you are held to know anything that a reasonable inquiry might have revealed

What are the two categories?

1) Covenants at law 2) Equitable servitudes

4 requirements for a covenant running with the land to be enforced at law (money damages):

1) Intent that it run with the land 2) Notice to the person against whom enforcement is sought 3) The covenant must touch and concern the land (make it more valuable or useful) 4) Privity - more later

What are the three requirements needed to enforce an equitable servitude (injunction)?

1) Intent that the restriction be enforceable by successors-in-interest 2) Notice to the subsequent purchaser, AND 3) The restriction must touch and concern the land NO PRIVITY REQUIRED

What do restrictive covenants do?

Give the right to restrict someone else's use of their land