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22 Cards in this Set

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III. Covenants and Equitable Servitudes – we are dealing w/promises.
Generally – who has to keep the promises they didn’t make and who gets to enforce promises they didn’t receive? When looking at promises, there are 3 possible categories (list them)
1. “Mere promises” “mere agreements” “personal or collateral promises or agreements” 2. Real Covenant 3. Equitable Servitudes
Define: “Mere promises” “mere agreements” “personal or collateral promises or agreements” –
1. “Mere promises” “mere agreements” “personal or collateral promises or agreements” – all mean the same thing. a) These are promises that DON’T RUN.
Define: Real Covenant –
2. Real Covenant – a promise that does run at law \\ REAL COVENANTS – running benefit/burden – AT LAW
Define: Equitable Servitudes –
3. Equitable Servitudes –promise that does run at equity
Considering 2 questions in this section
a) Does a person have to keep a promise he didn’t make? b) Can a person enforce a promise he didn’t receive? (1) Legalese – are transferees benefited or burdened by their predecessor’s promises?
Burden v. Benefit running at law \\\ 1. For BURDEN to run at law you need: FITHV (what are they?)
a) Form – is there a K, is it in writing if that is required? b) Intent – did the parties intend the burden to run (Spencer). Best expression is if they used the word “assigns” c) Touch and concern – simply… (1) Does the promise have to do w/land use? (2) Is it good, wholesome, fair? d) Horizontal Privity – was there a connection between promisor and promisee that justifies the burden to run e) Vertical privity – was there a succession by the assignee to the same piece of the timeline
What are the: 2 resolutions of this case have become a test of “intent to run”? Spencer conveyed a house to A for TFY (21yr). A covenanted on behalf of himself, executors, and assigns, to build a brick wall on the lot. A assigned his TFY to B who refused to build. Spencer sues on the covenant.
a) 2 resolutions of this case have become a test of “intent to run” (1) Intent is expressed by the word assigns (2) When the covenant touches and concerns the land, courts are willing to imply intent. (a) Promise touches and concerns land if has more to do w/the status as an owner of land than with his personality (promise to buy beer doesn’t work)
Horizontal Privity – is the mystical glue that binds _____ and ____ (privity means connection). You only look to see if there was HP between ____ promisor/promisee. Not between ______ possessors.
3. Horizontal Privity – is the mystical glue that binds promisor and promisee. (privity means connection). You only look to see if there was HP between original promisor/promisee. Not between successive possessors.
HP began life as a ______ doctrine – we used to think covenants were bad, now we think they’re good. We used to only let those w/HP further their connection by making real covenants. As we came to love our burdens, we began to ease the HP requirement
a) HP began life as a limiting doctrine – we used to think covenants were bad, now we think they’re good. We used to only let those w/HP further their connection by making real covenants. As we came to love our burdens, we began to ease the HP requirement
Types of HP - most restrictive to least restrictive
(1) English or Tenurial – Only the landlord/tenant relationship will work (2) Massachusetts or “mutual and simultaneous” – in a Mass. Jx., they will also accept an easement connecting promisor and promisee. The L/T relationship will work, but they eased the HP requirement allowing more. (3) American Jx – will accept L/T relationship, easement, and grantor/grantee HP (successive or instantaneous privity) – only succession required is the fleeting moment when the burdened land passed from promisee to promisor. (a) If A grants to B and extracts promise, there is HP (4) Clark Jx – HP is nonsense, an outdated requirement.
Define: HP (2) Massachusetts or “mutual and simultaneous” –
(2) Massachusetts or “mutual and simultaneous” – in a Mass. Jx., they will also accept an easement connecting promisor and promisee. The L/T relationship will work, but they eased the HP requirement allowing more.
Define: HP (3) American Jx –
(3) American Jx – will accept L/T relationship, easement, and grantor/grantee HP (successive or instantaneous privity) – only succession required is the fleeting moment when the burdened land passed from promisee to promisor. (a) If A grants to B and extracts promise, there is HP
Define: HP (4) Clark Jx –
(4) Clark Jx – HP is nonsense, an outdated requirement.
Define: HP (1) English or Tenurial –
(1) English or Tenurial – Only the landlord/tenant relationship will work
For BENEFIT to run at law you need: FITNV (which is..)
4. For BENEFIT to run at law you need: FITNV a) Form b) Intent c) Touch and concern d) NO Horizontal Privity e) Verticality (of estate) – succession to some (not necessarily the “same”) piece of the timeline.
Clarifying Benefit v. Burden – Jesse promises to give sausage pizza to Liz. (Benefit of pizza in Liz, burden in Jesse). Liz promises Jesse a pitcher of beer – (benefit in Jesse, burden in Liz) a) If Liz assigns the pizza promise to Melinda, she then has the _____ If Jesse assigns the pizza promise to Dan, he has the ______.
a) If Liz assigns the pizza promise to Melinda, she then has the benefit. If Jesse assigns the pizza promise to Dan, he has the burden. (1) Dan doesn’t want to give the pizza to Melinda. He will claim the burden did not run down to him or the benefit did not run down to Melinda. (2) If he can establish either of those as a Defendant, then he won’t have to provide Plaintiff (Melinda) w/ a pizza. He would do that by saying all the elements on the list weren’t checked off
a) B sells to C who builds apartment house – A sues C for damages (at law) (1) Talking about running burden – does C have to keep the promise B made. FITHV (LIST and Solve for each): HYPO: 6. HYPO – A and B are neighbors who decide to mutually restrict lots to family residential use (both make same promise). They sign an agreement wherein each promises on behalf of himself and assigns that lot will be used for single family only. Agreement is recorded.
(a) FITHV (b) Form – yes, K in writing (c) Intent – Yes “assigns” (d) T/C – Yes – has to do w/land, wholesome (e) VP – Yes – this is same piece of timeline, B sold an FSA (f) HP – there is no L/T relationship, no easement, no grantor/grantee (i) Only HP in Clark Jx (2) Therefore, burden only runs to C in Clark Jx – not in any other Jx.
b) Suppose that A, rather than C had built house. Now we are talking about running benefit. Does the benefit of the promise A made to B run down to C? – Elements of running benefit at law are: FITNV (LIST and Solve for each): HYPO: 6. HYPO – A and B are neighbors who decide to mutually restrict lots to family residential use (both make same promise). They sign an agreement wherein each promises on behalf of himself and assigns that lot will be used for single family only. Agreement is recorded.
(1) Form - Yes (2) Intent – Yes (3) T/C - Yes (4) No HP – satisfied (5) Verticality of estate – YES – more than we needed, C has the “same” FSA that B had (a) The benefit runs to C. He is a proper P. Even if you hated burdens you would say its OK because A is the one who made the promise
a) B ousts A (adverse possession). B then opens a restaurant on the premises and lets the trees grow. O sues B for damages (1) Does the burden of A run to B? \\\\ 7. O owns 2 acres tract, sells one acre to A. A covenants that her and her assigns will keep the acre to residential purposes and trim the trees
(a) NO - there’s no vertical privity since there is not a succession to the “same” piece of the timeline. B’s FSA is a new one, not the same one B had because A/P gives new title.
b) A leases her tract to C for 2 years. C opens nursery school and refuses to cut trees. O sues C for damages. (1) Does the burden run to C? \\\\7. O owns 2 acres tract, sells one acre to A. A covenants that her and her assigns will keep the acre to residential purposes and trim the trees
(a) NO – no vertical privity. C has a TFY (lease) and A has an FSA.
Policy justifications for these lame outcomes? What would we do in England? \\\\7. O owns 2 acres tract, sells one acre to A. A covenants that her and her assigns will keep the acre to residential purposes and trim the trees
(1) Historical – we don’t like to burden land (2) Modern A and C are landlord/tenant. A is better suited to trim trees as a landlord. 8. These outcomes are lame, so in England we would sue in equity.