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20 Cards in this Set
- Front
- Back
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EQUITABLE SERVITUDES – Running benefit/burden IN EQUITY
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A Promise can be either an _____ _____ or a _____ at law. Every promise is potentially either or both
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1. A Promise can be either an equitable servitude or a covenant at law. Every promise is potentially either or both
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In equity, ____ substitutes for _____
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2. In equity, notice substitutes for HP
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Running of BURDEN at equity – (list)
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3. Running of BURDEN at equity – a) Form b) Intent c) T/C d) Notice e) Verticality of land – has to be succession to the land (usually possession) – not the same as verticality of estate.
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Running of BENEFIT at equity (list)
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4. Running of BENEFIT at equity a) Form b) Intent c) T/C d) No HP nor Notice e) Verticality of land – has to be succession to the land (usually possession) – not the same as verticality of estate.
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Tulk v. Moxhay – this case invented the ____ _____ (not really, but we say it did) – express servitude Facts: 5. P owned park and conveyed to Elms who promised to maintain the square (garden only open to residents near square). Eventually the land reached D. D wants to build houses in the park. a) This case is in equity court, talking about the running of burden down to D.\\\\\\ 6. Result at law in US – 7. Result at law in UK –
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Tulk v. Moxhay – this case invented the equitable servitude (not really, but we say it did) – express servitude 6. Result at law in US – the burden would run – a) we have American HP – grantor/grantee relationship 7. Result at law in UK – the burden would not run a) They were not in an L/T relationship – that is why they sued in equity. (1) Burden runs in equity in UK – D had notice 8. In equity, notice substitutes for HP a) In this case, we had actual notice – usually will be constructive notice from the record
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a) B, an A/P ousts A - Does the burden of an equitable servitude run to an A/P?"
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(1) Split of authority - Some say yes – some say not (because no notice)
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O conveys one acre of 2 acre tract to A. The deed is recorded and contains covenants by A to use for residential only and he will trim trees. A leases to C. C opens apartments and refuses to cut trees. Who can O sue? How would C have notice?
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a) O can sue C because verticality of land is met. Possession as C as T of burdened land is sufficient. b) C would have notice from L’s (A) documents – Ts have constructive notice of L’s covenants.
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The burden of an _____ promise (cut the trees) runs in _____ (it didn’t 40 years ago)
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3. The burden of an affirmative promise (cut the trees) runs in equity (it didn’t 40 years ago)
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Why wont courts let them build? What about notice here? Why was the P a proper P? \\\ Sanborn v. Maclaine- implied reciprocal servitude 4. Facts – lots in planned subdivision. Developer transfers to Owners who buy the first lots. They promise single family K in deeds. Then the Maclaines, who had bought later and made no K in deed, want to build gas station on land 30 years after beginning of subdivision.
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5. Court will not let them do it – they use the magic “implied reciprocal servitude” a) Court says that when the original Owners promised single family to the Developer, there was an implied promise to the Owners by the Developer of the exact same promise (1) When the Developer sold to Maclaine, the lot carried the burden with it 6. NOTICE is key when talking about burden running in equity a) Here court says that Maclaines had inquiry notice – should have known about promise because single family is essence of subdivision – all the houses look the same 7. Related issue: Why was the P here a proper P? – 2 possible answers a) TP beneficiary – P was a TP beneficiary of promises made to the owners. Maybe he was intended to be a P b) Benefit was also attached to land (as well as Maclaine’s burden) – this is a daunting concept
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What kind of promises are these?. Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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a) All 4 promises are express – all development is sold this way
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Can A or A’s successor sue O or B under regular benefit/burden theory? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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– YES – just like if 2 neighbors made promises to each other.
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Assume B (lot 2 owner) starts to build gas station. O still has a lot left – can O sue B? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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a) Yes – under K2a – B expressly promised to O single family
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If A is in possession, can A sue B? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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a) Yes – under K1b – running burden (O’s burden is now B’s burden) b) A could also sue under another theory (1) A might be a TP beneficiary of K2a – running benefit (O’s benefit is now A’s benefit)
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A sells to A1 – can A1 sue B if A1 and B are in possession and B is gas station villain? 3 reasons? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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YES – 3 reasons a) Running benefit – of K1b b) Running burden – of K1b c) A1 was a TP beneficiary of B’s promise to O
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. Suppose A is gas station villain – can B sue A? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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a) Yes – under K1a – the benefit runs to B
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Suppose that A1 is villain, can B sue A1? Example - Subdivision – all lots owned by Developer (O) 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises back same (K2b)
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a) Yes – under K1a – the benefit runs to B
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Assume A is villain 1. Can O in possession sue? Facts: 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises NOTHING BACK.
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a) Yes – suing on K1a – not talking about running benefit – just about express K. A promised directly to O
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Assume A is villain 2. Can B in possession sue? Facts: 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises NOTHING BACK.
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a) Yes – A is the original promisor, the is still subject to burden – B is a proper P because the benefit runs. The benefit attached to lot 2 and it ran down to B.
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Assume B is villain – B has made promise to O – (K2a) 3. How to make A the proper P – 2 theories (WHAT ARE THEY?) Facts: 1. O conveys lot 1 to A. A covenants single family (K1a) and O promises back same (K1b) 2. O sells lot 2 to B. B covenants single family (K2a) and O promises NOTHING BACK.
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a) TP beneficiary – A would say that when B made his promise to O that A was an intended TP beneficiary of the promise – even if it was silent on that issue. Need 2 things for TP beneficiary status: (1) Intent – on the part of the original promisor B and on part of the original promisee O. (2) Notice – to promisor, B and his successors B1 (a) In a perfect world, the promise would have said all future lot owners are proper Ps. b) Implied reciprocal servitude – a court can imply a servitude any time it is equitable – Conservative Jx will not imply. (1) Courts in equity usually only imply things in extreme instances (saving a subdivision) (2) They are most comfortable implying a servitude when there is a reciprocal servitude expressed (when there is one just like it that is expressed) (a) Want to show a promise like the one you are asking for already exists and that both of them are part of a plan - use extrinsic evidence to help imply promise – brochure, houses on street, salesman’s representation…
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