Ix. Covenants

Front 1

What is a covenant?

Back 1

1. A real covenant is a promise concerning the use of land that:
a. Benefits and burdens the original parties to the promise and also their successors, and
b. Is enforceable in an action for damages.

Front 2

With covenants, We are determining whether one is entitled to a _____ or ______, the _______ of which he did not make

Back 2

2. We are determining whether one is entitled to a benefit or burden, the promise of which he did not make

Front 3

For covenants, the Traditional Remedy is _______—Distinguished from Equitable Servitudes Where _______ are Applied.

Back 3

Traditional Remedy is Damages—Distinguished from Equitable Servitudes Where Equitable Remedies are Applied (injunction)

Front 4

7. Three ways covenants may be imposed

Back 4

a. Include covenants in the deeds
b. Record a declaration of restrictions applicable to the subdivision as a whole and refer to the plan
c. Owners in an existing neighborhood may sign an agreement and record the agreement to put future owners on notice

Front 5

B. Elements for Burden of Real Covenant to Run with the land

Back 5

a. Writing
b. Intent
c. Privity of Estate
i. Horizontal
ii. Vertical
d. Notice
e. Touch and Concern

Front 6

For covenants, what words can show the intent that the covenants run with the land?

Back 6

b. Words such as “assigns”, “heirs” or “successors” usually evidence this intent
c. May be inferred from the nature of the restriction

Front 7

For Horizontal Privity, consider:

Back 7

i. Consider only the relationship between the original promisor and promisee

Front 8

For Vertical Privity, Consider:

Back 8

Successor must gain the entire estate—if the successor acquires less than the entire estate, no vertical privity exists→STRICT VERTICAL PRIVITY IS REQUIRED for covenant to run

Front 9

How can the Vertical privity requirement impact leases?

Back 9

ii. Very important for leases! [if A conveys to B a fee simple, with a restrictive covenant, and then B conveys to C a term of years tenancy, the burden does not run to C!!!!]

Front 10

What are the 3 types of notice?

Back 10

i. Actual notice
ii. Constructive notice
a) Recording of deed
iii. Inquiry notice

Front 11

Requirements for benefits of a covenant to run with the land:

Back 11

a. Writing
b. Intent
c. Vertical Privity
d. Touch and Concern

Front 12

How does Vertical privity differ with respect to benefits, as opposes to burdens:

Back 12

i. Only vertical is needed
a) Not strict: Don’t have to succeed to the same estate—must only have a possessory interest

Front 13

How can real covenants be terminated?

Back 13

1. Can be destroyed if one party acquires both parcels, eminent domain, benefited party releases rights, etc.
2. Time period may be fixed
3. Abandonment
4. Changed conditions

Front 14

What is the for breach of a real covenant?

Back 14

Compensatory Damages

Front 15

What is a running equitable servitude?

Back 15

1. An equitable servitude is a promise concerning the use of land that:
a. Benefits and burdens the original parties to the promise and their successors, and
b. Is enforceable in equity

Front 16

2. Equitable Servitude Distinguished from Covenant

Back 16

a. Standard for enforcement is easier to meet
b. Broader array of defenses apply
c. Remedy is injunction, not damages

Front 17

Requirement for burden of equitable servitude to run?

Back 17

a. Writing
b. Intent
c. Touch and Concern
d. Notice
e. NO privity requirement!

Front 18

Requirement for the benefit of an equitable servitude to run?

Back 18

a. Writing
i. Or equitable estoppel
b. Intent
i. Common plan or scheme suffices
c. Touch and Concern

Front 19

What are some ways to enforce subdivision covenants against later buyers?

Back 19

Third party beneficiary theory

Implied reciprocal negative equitable servitude theory.

Front 20

Define: Third party beneficiary theory

Back 20

c. Allows a contractual promise to be enforced by someone for whose benefit a promise was made even though the promise was not made to that person

Front 21

Define:
Implied reciprocal negative equitable servitude theory.

Back 21

i. Doctrine allowed reciprocal enforcement when deeds in question formally restricted use of the land but the technical requirements of privity were nonetheless not met
ii. Allowed enforcement by early buyers against later buyers

Front 22

Must there be a common scheme/ plan for either the Third party beneficiary theory or the Implied reciprocal negative equitable servitude theory to be enforceable?

Back 22

YES!

Front 23

a. The primary factor in interpretation of covenants is the __________________

Back 23

a. The primary factor in interpretation of covenants is the intent of the grantor

Front 24

What is the changed conditions doctrine?

Back 24

1. Applies to changes within the restricted area
2. Would undue hardships be caused by enforcement of the covenant?
a. Compare burden of compliance with adverse effects from noncompliance (benefit to dominant estate)

Front 25

What are some Equitable doctrines that can be invoked to prevent enforcement of servitudes ?

Back 25

Release
Merger
Unclean Hands
Waiver or Acquiescence
Laches
Abaondonment
Estoppel
Prescription

Front 26

What are some ways to terminate an easement?

Back 26

Release
Expiration
Merger
Abandonment
Adverse Possession/ Prescription