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194 Cards in this Set

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Destruction by servient owner
If the servient owner interferes with an easement in an adverse manner (e.g., by erecting a fence across a roadway), the servient owner can extinguish the easement by prescription. The requisite elements of adversity are the same as for the creation of an easement by prescription. However, where an easement has been created but no occasion has arisen for its use and the servient owner fences his land, the servient owner is not deemed to act adversely until the dominant owner demands that the easement be opened and the servient owner refuses to do so
Exam tip
When confronted with an exam question involving overuse or misuse of an easement, remember that such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse. Reasonable use of the easement may continue.
Negative easements- Types recognized by early English law
Rare and are generally not permitted unless one of
four types recognized by early English law: easements for light, for air, for subjacent or lateral support, or for the flow of an artificial stream. At common law an easement of view or scenic easement would not have been permitted as a negative easement because it was not one of the four types.
Negative easements in general
Almost all types of purported negative easements can be treated as a promise by the servient owner not to use his land in a certain way
General
An easement is a grant of an interest in land; a
covenant is a promise respecting use of land.) Courts have not found it necessary to expand the categories of permissible negative easements because they can classify the right to prevent a neighbor from doing some-
thing on his land as an equitable servitude (a “promise”)
Negative easements cannot arise by prescription
In the United States, negative easements (for light and air, support, drainage) cannot arise by prescription. The reason is that prescription bars a cause of action, and where the owner has no cause of action, prescription does not
apply.
Covenant
A promise to do or not to do a certain thing
Real covenant
A real covenant is a covenant that runs with the land at law. It is enforceable at law by a successor owner of the promisee’s land and, concomitantly, is enforceable against a successor to the promisor’s land. If the plaintiff wants money damages, the plaintiff must show that the covenant qualifies as a real covenant. The plaintiff must satisfy the requirements for the covenant to run at law
A real covenant- personal liability only.
A real covenant gives rise to personal liability only. It is enforceable only by an award of money damages, which is collectible out of the general assets of the defendant.
Real covenant creation
At common law a real covenant had to be in writing and under seal. The requirement of a seal has been abrogated, but a writing is still required.
Real covenants- burden
The burdened tract is analogous to the servient tenement under the law of easements
Real covenants- benefit
The benefited tract is analogous to the dominant tenement. Easements run to successive owners of the tracts involved because easements are interests in land (part of the title). Covenants, on the other hand, did not start out as interests in land, but rather only as promises concerning the use of land, and so courts laid out different rules for when these promises run to successors.
Requirements for the BURDEN to run at law
The requirements for the burden to run are:
(i) the contracting parties must intend that successors to the promisor be bound by the covenant;
(ii) there must be (at least in some states) privity of estate between the original promisor and promisee as well as privity of estate between the promisor and his assignee; (iii) the covenant must touch and concern the land ; and (iv) a subsequent purchaser of the promisor’s land must have notice of the covenant
Requirements for BENEFIT of covenant to run at law
(i) the parties must so intend;
(ii) some form of privity of estate may be required; and
(iii) the benefit must touch and concern land owned by the promisee.
Necessity of word “assigns” for BURDEN to run
If the covenant concerns a thing that is not in being at the time the covenant is made but is to be built or
created thereafter, the burden of the covenant will not bind assigns unless they are expressly mentioned. For example, if A promises B that A will build a wall, A’s assignee is not bound unless A promises on behalf
of herself and her assigns. This technical rule has been abolished in the large majority of states, which hold that intention is to be gathered from the whole instrument and not from the presence or absence of the word
“assigns.”
Horizontal privity
a specified relationship existing between the original promisor and promisee
Vertical privity
A specified relationship between an original party to the contract and an assignee
Horizontal privity- Running of the burden
For the burden of a covenant to run to assignees, the traditional rule is that the original parties to the covenant must be in privity of estate.
Horizontal privity- Running of the burdenEnglish view
In England it was ultimately decided that the parties to a
promise are in privity of estate only if they are in a landlord and tenant relationship.
Horizontal privity- Running of the burden- mutual interest
The burden will run if one party has an interest (apart from the covenant) in the land of the other.
Horizontal privity- Running of the burden- Successive relationship
A third view of privity—said to be the majority—is that the important fact in Spencer’s Case was that the covenant was contained in a conveyance of an interest in land. Applying this view to a covenant by a fee owner, privity of estate is present where the promise is contained in a conveyance of the fee simple, i.e., where one of the original parties to the promise succeeds to an estate previously owned by the other party.
Horizontal privity- Running of the burden- Restatement view
First Restatement of Property section 534, synthesizing the jurisdictions, says privity of estate is satisfied by either a mutual relationship or a successive relationship.
Minority view- running of the burden
A minority view holds that horizontal privity is not required for running of the burden.
Exam tip
Horizontal privity concerns only the original parties. Even if successors in interest are trying to enforce the covenant, you must look only to the original covenanting parties to determine horizontal privity.
Running of the BENEFIT- Common law
At common law, the benefit of a covenant could run without the covenanting parties being in privity of estate.
Exam tip
When answering exam questions on covenants, remember that in many states the burden of the covenant will run to successors only if there is horizontal privity—a successive relationship between the parties such as grantor-grantee or, in some states, a mutual relationship such as lessor-lessee. Horizontal privity is not required, however, for the benefit of the covenant to run to a successor.
Vertical privity
Vertical privity means the party suing or being sued succeeded to the estate of the original promisee or promisor.
Vertical privity- running of the burden
For the burden to run to a successor owner of the land, the successor must be in vertical privity of estate with the original promisor.

Example: Suppose that O owns Whiteacre and Blackacre. A buys Blackacre from O. A promises O, his heirs, and assigns that A, his heirs, and assigns will not erect a pizza parlor on Blackacre, which would be objectionable to Whiteacre. Subsequently A devises Blackacre to his wife, W, for life. W erects a pizza parlor. W is not liable for damages. She did not succeed to the whole fee simple A had.
Vertical privity- Running of the burden- Runs with the estate in land
From the above discussion, you should see that although we talk about “covenants running with the land,” in fact the covenant runs with the estate in land.
Vertical privity- Running of the benefit
When the issue is whether the benefit (rather than the burden) runs, First Restatement section 542 says the benefit will run to assigns of any interest in the land, not just to assigns of an estate of the same duration as held by the original promisee.
Vertical Privity- Restatement of Servitudes view
Restatement of Servitudes section 5.2 discards the requirement of vertical privity for running of both the burden and the benefit. Instead, the Restatement draws a distinction between affirmative and negative covenants. Negative covenants are treated like easements, which run to successors because they are interests in land. Affirmative covenants, requiring the burdened owner to perform an act, are treated differently because they are viewed as more onerous
than negative covenants. The burdens and benefits of affirmative covenants run to persons who succeed to an estate of the same duration as owned by the original parties, including in most cases an adverse possessor. But affirmative covenants do not run to persons who hold lesser estates than those held by the original parties to the covenant. Special rules are set forth for when affirmative burdens run to lessees and life tenants, who must perform them, and when they can enforce the benefit.
Vertical privity- exception- homeowner's association
A homeowners’ association may sue to enforce the benefit of a covenant even though the association succeeds to no land owned by the original promisee. The homeowners’ association is regarded as the agent of the real parties in interest who own the land.
Horizontal privity
The term used to describe the relationship between the original promisor and promisee—the parties to the cove-
nant.
Vertical privity
The term used to describe the relationship between an original party to the covenant and an assignee.
Touch and Concern
For the burden to run with the burdened land, the covenant must touch and concern the burdened land. Likewise, for the benefit to run with the benefited land, the covenant must touch and concern the benefited land.
Notice
A bona fide purchaser of the burdened land is not bound at law if he has no notice of the covenant.
Liability of original promisor after assignment
After the promisor assigns the land, does the promisor remain personally liable on the contract? If the covenant is a promise to do or not to do some act on the burdened land, the covenantor has no liability after assignment. The covenantor has no control over the land after assignment, so it would be unfair to hold him liable for performance of the covenant by the assignee or subse-
quent assignees. With this type of covenant, the courts imply that the parties intended that the covenantor’s liability cease with assignment.
Equitable servitude
A covenant—whether or not running with the land
at law—that equity will enforce against assignees of the burdened land who have notice of the covenant. The usual equitable remedy granted is an injunction against violation of the covenant.
Exam Tip
When answering exam questions, be sure to remember that the crucial difference between real covenants and equitable servitudes is the remedy sought. If money damages are sought, you must use the real covenant analysis. If a party seeks an injunction, you must consider whether the requirements for enforcement as an equitable servitude have been met. A single promise can create both a real covenant and an equitable servitude.
Equitable servitude- creation
A real covenant must be in writing. In many states an equitable servitude will be implied
Equitable servitude- Privity of estate
Horizontal privity of estate is not required in equity. Nor is vertical privity required for the burden to run. The court, in enforcing an equitable servitude, is enforcing an interest in land analogous to an easement, which is enforceable against any person who interferes with it.
On the other hand, when a person other than the original promisee is enforcing the benefit, in some states such person must show that he acquired title to his land from the promisee, either before or after the original covenant was made.
Exam tip
In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, in most states no privity of estate is required for an equitable servitude to be enforceable by and against assignees.
Touch and concern
Both real covenants and equitable servitudes require that the covenant touch and concern land. Neither is enforceable against a subsequent bona fide purchaser without notice of the covenant.
Restatement of Servitudes position
The Restatement of Servitudes applies the same rules to real covenants and equitable servitudes, thus abolishing any distinction between them.
Equitable Servitudes- Creation
Inasmuch as an equitable servitude is an interest in land, most courts hold that the Statute of Frauds requires a writing signed by the promisor. As with real covenants, acceptance of a deed signed only by the grantor binds the grantee as promisor. However, there is one important exception to the requirement of a writing: Negative equitable servitudes may be implied from a general plan for development of a residential subdivision.
Equitable Servitudes- implied from a general plan
A court will imply a reciprocal negative servitude only if the evidence shows that the developer had a reasonably uniform general plan for development of all lots of the same character. On the basis of this general plan, it is inferred that the purchasers bought in reliance on the
general plan and in the expectation of being able to enforce subsequently created equitable servitudes similar or identical to the restrictions imposed on their lots.
Equitable Servitudes- evidence of a general plan
The general plan must exist at the time the developer sells the first burdened lot within the general plan. If the plan arises later, it cannot impose burdens on lots previously sold without the burdens. Evidence of a general plan includes a recorded plat with restrictions, the developer exhibiting to buyers a map or plat of the entire tract on which restrictions appear, oral representations of the developer with respect to
restrictions to be imposed on the remaining land, and statements made in sales brochures or advertising. Or, a general plan can be shown by the fact that the developer inserted similar covenants in a substantial number of the deeds in the subdivision prior to the deed to defendant. Restrictions inserted in other deeds after the deed to defendant do not show a general plan at the necessary time.
Exam Tip
Questions involving negative servitudes implied from a general plan are fairly common on law school exams and fairly easy to spot. They almost always will involve a general plan for an exclusively residential subdivision and a purchaser who wants to intrude with a commercial use. You should enforce the negative servitude (i.e., prohibit the commercial use) if there is evidence that (i) the developer had a plan calling for development of all the lots in the same character and (ii) the plan existed no later than the time the parcel in question was sold.
Kind of servitude implied
A servitude similar to a reciprocal negative easement is implied. This label is quite descriptive. The servitude must be reciprocal; i.e., a similar covenant must bind other lots in the subdivision. It must be a negative or
restrictive covenant, forbidding some use of land; the court will not imply affirmative covenants, requiring the purchasers to do something. And the servitude is in the nature of an easement; i.e., it is an interest in land.
Covenants not implied
Some courts refuse to imply reciprocal negative servitudes in a residential subdivision. In California, an equitable servitude must be created by a written instrument identifying the burdened lot. It will not be implied from the existence of restrictions on other lots in a subdivision
Using a general plan to show the benefit
Even in jurisdictions that do not imply restrictions from a general plan, a general plan can be used to show who the developer intended to have the benefit of written restrictions on other lots. If there is a general plan, then
prior and subsequent purchasers of lots within a subdivision can enforce a written restriction on a restricted lot. It is inferred from the plan that the developer intended to confer a benefit on all lot owners. A general plan can be used to determine who
can enforce restrictions in jurisdictions that imply restrictions from a general plan as well as in jurisdictions that do not imply restrictions.

Example: Developer, owner of 50 lots in a subdivision, sells these lots with restrictions limiting use to residential purposes only. The deeds do not indicate who has the power to enforce the restrictions. If the developerhas a general plan of substantial uniformity, all purchasers in the subdivision—whether they buy their lots before or after the owner they are suing—can enforce the restrictions.
Developer's right to modify
If the developer retains the right to modify the restrictions imposed on lots to be sold in the future, some cases have held that this is evidence of intent to benefit the developer personally and not the neighbors in the subdivision. The retention of the right to modify may negate the existence of enforcement rights in the lot owners. On the other hand, several cases and Restatement of Servitudes take the position that the developer’s right to modify does not destroy the power of the lot owners to enforce the general plan as it finally takes form.
Equitable Servitudes- Enforcement By or Against Assignees
The contracting parties must intend that the servitude be enforceable by and against assignees. No technical words such as “assigns” (possibly required for a covenant to run at law) are required. The court ascertains intent from the purpose of the covenant and the surrounding circumstances.
Equitable Servitudes- Privity of estate
Privity of estate is relevant in equity only when the person trying to enforce the benefit does not own land that was once owned by the original promisee. In some states, such a person cannot enforce the benefit.
Ghost of privity
Privity of estate, somewhat redefined, survives in a few states as a requirement for enforcing an equitable servitude. The person seeking to enforce the covenant must trace his title to the original promisee. In describing this requirement, courts say the plaintiff must be in “privity of estate” with the original promisee. Under this requirement, all purchasers in a subdivision can enforce a restriction imposed by the developer, because they trace title from the developer. But a third party
who did not buy any land from the person imposing the restriction cannot enforce the restriction. Similarly, a third party that owns no land cannot enforce a restriction because the party cannot trace title to land from the developer.
Third party beneficiary theory
In a large majority of states, any third-party beneficiary can enforce a covenant in law or in equity if the contracting parties so intend. This follows modern contract law, which puts no restrictions on the kinds of
third-party beneficiaries who can enforce contracts. In these jurisdictions, privity of estate is irrelevant in enforcing equitable servitudes.
Distinguish-easements from equitable servitudes
an equitable servitude analogous to a negative easement can be enforced by third parties.
Touch and concern requirement
For the burden to run with the burdened land in equity as well as in law, the covenant must touch and concern the burdened land. And likewise, for the benefit to run with the benefited land, the covenant must touch and concern the benefited land. Equity generally applies the same touch and concern test as is applied at law. It is difficult to give any but the most generalized statement of the meaning of “touch and concern.” Early cases asked whether the covenant burdens or benefits a party in
the physical use or enjoyment of particular land, but this proved too narrow a test. Some covenants, particularly negative covenants, merely enhance the value of the benefited land, but they have been held to touch and concern the benefited land as well as the burdened land.
Negative covenants- touch and concern
Covenants not to do a physical act (e.g., not to erect commercial buildings) touch and concern. These covenants affect the burdened owner in the physical use of his land. Restrictive covenants also enhance the value of the benefited land, even though they may not affect the benefited owner in the physical use of his land. Covenants containing building restrictions, enhancing the value of the benefited land, have always been held to touch and concern.
Covenants not to compete- Burden side
A covenant not to compete restricts the promisor in the
physical use he may make of his land. Hence, it touches
and concerns the burdened land as much as a covenant restricting the property to residential use. Most courts have so held, provided the covenant is reasonable in its duration and in the area it encompasses.
Covenants not to compete- Benefit side
The benefit of a covenant not to compete clearly enhances the value of the covenantee’s land, but it is debatable whether it affects him in the physical use of his land. Nevertheless, a majority of courts hold that enhancement of commercial value is enough to satisfy the requirement of touch and concern.
Color of title and payment of taxes
not required for prescriptive easements
Continuous use
The adverse use must be continuous, but this does not mean constant. Indeed, the use of an easement ordinarily involves only periodic use. Continuity requires a continuous claim of right and periodic acts which, given the nature of the type of easement claimed, give notice to the owner that an easement is being claimed. Thus, driving or walking across another’s land, whenever headed in that direction, is sufficient to establish a prescriptive easement, even though this is not done every day.
Seasonal use
Grazing cattle on another’s land during the grazing season every year establishes sufficient continuity, even though the season is only a few months long. Similarly, hunting or fishing rights can be acquired by prescription despite long intervals between use. The difficult thing in hunting and grazing cases is to distinguish between seasonal use with a claim of right to continue it season after season and, on the other hand, sporadic or occasional trespasses. Sporadic and occasional trespasses do not give rise to a prescriptive easement
Tacking
Tacking is allowed in prescription, just as it is allowed in adverse possession. One prescriptive user can tack on to his period of use the prescriptive use of a predecessor in interest. Transfer of the dominant tenement establishes the necessary privity if the grantor intends to transfer with it the use which is ripening into an easement.
Uninterrupted use
If the adverse use is interrupted by the owner of the land being used, the prescriptive period ends. If the adverse use begins again after interruption, a new prescriptive period begins. In prescription, there is some authority in jurisdictions following the fiction of the lost grant (see
supra, §1134) that the owner can interrupt adverse use by merely protesting the use (e.g., mailing a letter to the user). In jurisdictions rejecting the fiction of the lost grant, the owner must effectively interrupt the adverse use. A sign or oral protest will not suffice.
Public easements
In most jurisdictions, the public at large can acquire a public easement in private land by prescription if members of the public use the private land in a manner meeting the requirements for prescription. If the public
uses land for a roadway, the presumption is that the use is adverse (under a claim of right), just as it is for an individual claim of easement. On the other hand, if the public uses vacant, undeveloped land, the presumption is that the use is permissive. It is deemed not to give notice to the owner of a claim of right. Therefore, except for a public road, it is difficult to acquire a public easement by prescription.
Minority view for public easements
In some states, the general public cannot acquire prescriptive rights in private property. Rationale: The owner’s cause of action runs against the specific trespassing individuals and not against the public
at large. Therefore, the statute of limitations only bars the owner from suing the individuals who trespassed.
Customary rights
In Florida, Hawaii, and Oregon, courts have revived the medieval doctrine of customary rights in beaches.
Scope of easements- General rule
The scope of an easement depends on the intention of the parties. The court will also look at whether the increase in the burden is unreasonable.
Scope of easement- express easement
If the easement was expressly created, the court will look at the language of the instrument, together with the surrounding circumstances, in order to determine the parties’ intent.
Easement of way
An easement of way is a favorite of the law because surface access is essential to the use and productivity of land. An easement of way is given a scope that permits it to meet the needs of the dominant tenement as it normally develops. It may be used in ways reasonably foreseeable by the parties or, if not foreseeable, by ordinary means of transportation as those means normally evolve. There is a strong public policy that land have access necessary to make it useful under contemporary conditions.
Implied easement by existing use- scope
If an easement is implied on the basis of a use existing at the time of severance of a tract into two parcels that the parties intended to continue, the scope is generally the same as an express easement. Changes that reasonably might have been expected or that are necessary to preserve the utility of the easement are permitted.
Implied easement by necessity- scope
In case of an easement by necessity, the extent of necessity determines the scope.
Easements by prescription
It is more difficult to increase the burden of an easement by prescription than any other kind of easement. The uses that give rise to the easement can continue, but there is no basis for assuming the parties intended the
easement to accommodate future needs. After all, the owner of the servient land (O) might not have objected to A crossing O’s land to pick apples on A’s land, which use gave rise to the prescriptive easement, but the owner would have objected to a whole stream of traffic generated by a subdivision on A’s land. Thus, if a prescriptive easement is acquired by use to reach a house, and the use of the dominant tenement is
changed from residential to commercial, the added burden of traffic probably will not be permitted on the prescriptive easement.
Scope tip
Questions on easements often ask whether the easement holder can increase the scope of the easement. Remember, the courts will look to the intent of the parties, based on any written instruments and the circumstances at the time the easement was created. Courts will also consider whether the increase will unreasonably burden the servient tenement. Generally, an express or implied easement of way (the most common exam fodder) can be increased in scope to meet the needs of the dominant tenement as they normally develop. However, courts are slow to increase the scope of an easement of way obtained through prescription because while the servient owner might not have objected to some slight use of her land (e.g., the creation of a footpath to pick apples), she might have strongly objected to heavier use (e.g., driving a truck onto her land to pick apples).
Subdivision of dominant tenement
As a general rule, if the dominant estate is subdivided, each subdivided lot has a right to use easements appurtenant to the dominant estate. An easement is ap-
purtenant to every part of the dominant tenement. However, there is an important limitation on use of an easement by subdivided lots: The servient estate is
not to be burdened to a greater extent than was contemplated at the time the easement was created and is necessary to accommodate normal development of
the dominant estate. Obviously it is a question of judgment, weighing all the circumstances, as to when the increase in burden becomes unreasonable.
Use for benefit of non-dominant land
An easement granted for the benefit of lot 1 cannot be used for the benefit of lot 2, even though the same person owns lots 1 and 2. The dominant owner cannot increase the scope of the easement by using it to benefit a nondominant tenement.
Change in location of an easement
If an easement has been granted in a specific location, or has been located by mutual agreement of the parties, the location cannot thereafter be changed by one party acting unilaterally. The location can be changed only by mutual consent.
Widening of an easement
f the width of an easement is specified in the grant, or if it existed at the time of the grant so that it can be inferred that the parties intended it to remain the same width, the easement cannot be widened without the
consent of the servient owner.
Use by the servient owner
The servient owner has the right to use the servient land in ways that do not unreasonably interfere with the easement. The servient owner may erect a structure over an easement of way, provided enough headroom is provided for the passage of vehicles below. Similarly, the owner of the servient land may use the easement itself, provided it is not an exclusive easement and the use does not unreasonably interfere with the rights of the owner of the easement.

Example: Example: O grants to a water company an easement to lay water pipes across O’s land. O can grant similar rights to others for the same purpose, provided these subsequent rights do not interfere with the rights of the water company.
Division of easements in gross- Nonexclusive easements
Absent authority in the grant, the easement holder cannot divide the right among others who use it independently. To do so would constitute excess competition with the servient owner for the use or sale of
the rights.
Division of easements in gross- Exclusive easements
An easement in gross is exclusive if the holder has the exclusive right to enjoy it (e.g., the only person who can hunt). The owner of an exclusive easement can divide it and transfer it to others who can use it independently, unless the original grant prohibits this.
Overuse of profit in gross
The one-stock rule is: When two or more persons
own a profit in gross they must use the profit as one stock. Neither can operate independently of the other. One owner can veto use by the other because consent of all is required. The one-stock rule has been applied to easements in contexts where overuse of the easement
may result in destroying the resource.
One Stock Rule
Almost all profits are held in gross; they are not appurtenant to land. A usual profit is the right to take timber, minerals, or sand on O’s land. The “one stock” rule thus inhibits consuming natural resources without regard to future needs.
Transfer of easement appurtenant
When the dominant tenement is transferred, any easements appurtenant are transferred with it, unless the appurtenant easement is also personal in its
terms. Similarly, the burden of an easement appurtenant
passes with the servient land when transferred. An easement appurtenant is thought of as “attached” to the dominant land, and it benefits the possessor of that land, including an adverse possessor. Of course, the owners of the servient and dominant tenements may make a contrary agreement if they wish. By mutual consent, they can “detach” the easement and either “attach” it to
other dominant land or convert it into an easement in gross, but neither party acting alone can do this.
Exam tip
It is important to remember that the easement appurtenant passes with the benefited land. Don’t be fooled by questions that make you think it must be specifically mentioned in the deed.
Easements in gross
Easements in gross may present special problems regarding transferability. If the benefit of an easement in gross is inherited by or assigned to a large number of persons, it may be difficult to locate these persons (or their heirs upon their deaths), making it difficult to secure a release of the easement or to clear up title.
Commercial easements in gross assignable
The general rule today is that the benefit of a
commercial easement in gross is assignable, and a noncommercial easement in gross is assignable if the parties so intend.Commercial easements in gross are those that have primarily economic benefit rather than personal satisfaction. The large majority of easements in gross are of this kind: railroad rights-of-way, gas pipe lines, and utility easements. Rationale: It would be unacceptable public policy for a transportation or util-
ity company to lose its easements when it merged with another company. Moreover, the problem of locating multiple unknown owners does not arise with most commercial easements in gross, which are held by utility
companies or railroads. Finally, if commercial easements in gross are not assignable, utility companies will buy a fee simple for their lines, rather than an easement; this is undesirable because a fee simple, unlike an easement, cannot be terminated by abandonment or by acts of the
owner.
Profits in gross
Profits in gross (e.g., the right to take timber or minerals) have always been assignable.
Termination of easements
May be terminated in accord with its express terms.
Termination- By unity of title
If the title to the easement and title to the servient tenement come into the hands of one person, the easement is extinguished. Once the easement is extinguished, it is not revived by subsequent separation of the tenements into two ownerships. Easement not extinguished by merger of title of dominant tenement with one of two servient tenements when the other servient tenement was necessary for enjoyment of easement
Termination- Release by dominant owner
The owner of an easement may release the easement to the servient owner by a written instrument. An oral release is ineffective because of the Statute of Frauds. However, if the owner of an easement orally release the easement and the servient owner expends money in reli-
ance on the oral release (such as erecting a building on the easement), the easement owner is estopped to plead the Statute of Frauds. The easement is extinguished by the oral release and action in reliance
Nonuse
Mere nonuse of an easement, like nonuse of a fee simple, does not extinguish the easement.
Abandonment
Although neither oral release nor nonuse alone is sufficient to terminate an easement, if the owner of an easement acts in such a way as to indicate an unequivocal intent to abandon the easement, the easement is abandoned. Such acts can include an oral release or nonuse coupled with failure to maintain the easement, or permitting the easement to be blocked by others, or establishing a substitute easement elsewhere.
Exam tip
Don’t confuse mere nonuse with abandonment. Nonuse alone does not extinguish the easement. On the other hand, if the owner of the easement acts in a way that indicates an unequivocal intent to abandon the easement, such as allowing the easement to be blocked or an oral release coupled with failure to maintain, the easement is abandoned.
Alteration of dominant tenement
If an easement is granted for a particular purpose, and an alteration of the dominant tenement makes it impossible to achieve the purpose any longer, the easement is extinguished.
Easement by necessity termination
An easement by necessity terminates when the necessity ends. If the dominant owner acquires other access by conveyance or prescription, the easement by necessity is extinguished.
Destruction by servient tenement
An easement in a structure (e.g., a right to use a stairway) is terminated if the building is destroyed without fault of the owner of the servient estate (e.g., by fire or act of God). If the building is destroyed by the in-
tentional act of the servient owner, the easement is not extinguished. The servient owner is liable in damages to the owner of the easement, and a court may require the servient owner to create in any new building a stairway for the use of the dominant owner.- Majority

Minority- an easement can be destroyed by the intentional destruction of the building by the servient owner.
Destruction by servient owner
If the servient owner interferes with an easement in an adverse manner (e.g., by erecting a fence across a roadway), the servient owner can extinguish the easement by prescription. The requisite elements of adversity are the same as for the creation of an easement by prescription. However, where an easement has been created but no occasion has arisen for its use and the servient owner fences his land, the servient owner is not deemed to act adversely until the dominant owner demands that the easement be opened and the servient owner refuses to do so
Exam tip
When confronted with an exam question involving overuse or misuse of an easement, remember that such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse. Reasonable use of the easement may continue.
Negative easements- Types recognized by early English law
Rare and are generally not permitted unless one of
four types recognized by early English law: easements for light, for air, for subjacent or lateral support, or for the flow of an artificial stream. At common law an easement of view or scenic easement would not have been permitted as a negative easement because it was not one of the four types.
Negative easements in general
Almost all types of purported negative easements can be treated as a promise by the servient owner not to use his land in a certain way
General
An easement is a grant of an interest in land; a
covenant is a promise respecting use of land.) Courts have not found it necessary to expand the categories of permissible negative easements because they can classify the right to prevent a neighbor from doing some-
thing on his land as an equitable servitude (a “promise”)
Negative easements cannot arise by prescription
In the United States, negative easements (for light and air, support, drainage) cannot arise by prescription. The reason is that prescription bars a cause of action, and where the owner has no cause of action, prescription does not
apply.
Covenant
A promise to do or not to do a certain thing
Real covenant
A real covenant is a covenant that runs with the land at law. It is enforceable at law by a successor owner of the promisee’s land and, concomitantly, is enforceable against a successor to the promisor’s land. If the plaintiff wants money damages, the plaintiff must show that the covenant qualifies as a real covenant. The plaintiff must satisfy the requirements for the covenant to run at law
A real covenant- personal liability only.
A real covenant gives rise to personal liability only. It is enforceable only by an award of money damages, which is collectible out of the general assets of the defendant.
Real covenant creation
At common law a real covenant had to be in writing and under seal. The requirement of a seal has been abrogated, but a writing is still required.
Real covenants- burden
The burdened tract is analogous to the servient tenement under the law of easements
Real covenants- benefit
The benefited tract is analogous to the dominant tenement. Easements run to successive owners of the tracts involved because easements are interests in land (part of the title). Covenants, on the other hand, did not start out as interests in land, but rather only as promises concerning the use of land, and so courts laid out different rules for when these promises run to successors.
Requirements for the BURDEN to run at law
The requirements for the burden to run are:
(i) the contracting parties must intend that successors to the promisor be bound by the covenant;
(ii) there must be (at least in some states) privity of estate between the original promisor and promisee as well as privity of estate between the promisor and his assignee; (iii) the covenant must touch and concern the land ; and (iv) a subsequent purchaser of the promisor’s land must have notice of the covenant
Requirements for BENEFIT of covenant to run at law
(i) the parties must so intend;
(ii) some form of privity of estate may be required; and
(iii) the benefit must touch and concern land owned by the promisee.
Necessity of word “assigns” for BURDEN to run
If the covenant concerns a thing that is not in being at the time the covenant is made but is to be built or
created thereafter, the burden of the covenant will not bind assigns unless they are expressly mentioned. For example, if A promises B that A will build a wall, A’s assignee is not bound unless A promises on behalf
of herself and her assigns. This technical rule has been abolished in the large majority of states, which hold that intention is to be gathered from the whole instrument and not from the presence or absence of the word
“assigns.”
Horizontal privity
a specified relationship existing between the original promisor and promisee
Vertical privity
A specified relationship between an original party to the contract and an assignee
Horizontal privity- Running of the burden
For the burden of a covenant to run to assignees, the traditional rule is that the original parties to the covenant must be in privity of estate.
Horizontal privity- Running of the burdenEnglish view
In England it was ultimately decided that the parties to a
promise are in privity of estate only if they are in a landlord and tenant relationship.
Horizontal privity- Running of the burden- mutual interest
The burden will run if one party has an interest (apart from the covenant) in the land of the other.
Horizontal privity- Running of the burden- Successive relationship
A third view of privity—said to be the majority—is that the important fact in Spencer’s Case was that the covenant was contained in a conveyance of an interest in land. Applying this view to a covenant by a fee owner, privity of estate is present where the promise is contained in a conveyance of the fee simple, i.e., where one of the original parties to the promise succeeds to an estate previously owned by the other party.
Horizontal privity- Running of the burden- Restatement view
First Restatement of Property section 534, synthesizing the jurisdictions, says privity of estate is satisfied by either a mutual relationship or a successive relationship.
Minority view- running of the burden
A minority view holds that horizontal privity is not required for running of the burden.
Exam tip
Horizontal privity concerns only the original parties. Even if successors in interest are trying to enforce the covenant, you must look only to the original covenanting parties to determine horizontal privity.
Running of the BENEFIT- Common law
At common law, the benefit of a covenant could run without the covenanting parties being in privity of estate.
Exam tip
When answering exam questions on covenants, remember that in many states the burden of the covenant will run to successors only if there is horizontal privity—a successive relationship between the parties such as grantor-grantee or, in some states, a mutual relationship such as lessor-lessee. Horizontal privity is not required, however, for the benefit of the covenant to run to a successor.
Vertical privity
Vertical privity means the party suing or being sued succeeded to the estate of the original promisee or promisor.
Vertical privity- running of the burden
For the burden to run to a successor owner of the land, the successor must be in vertical privity of estate with the original promisor.

Example: Suppose that O owns Whiteacre and Blackacre. A buys Blackacre from O. A promises O, his heirs, and assigns that A, his heirs, and assigns will not erect a pizza parlor on Blackacre, which would be objectionable to Whiteacre. Subsequently A devises Blackacre to his wife, W, for life. W erects a pizza parlor. W is not liable for damages. She did not succeed to the whole fee simple A had.
Vertical privity- Running of the burden- Runs with the estate in land
From the above discussion, you should see that although we talk about “covenants running with the land,” in fact the covenant runs with the estate in land.
Vertical privity- Running of the benefit
When the issue is whether the benefit (rather than the burden) runs, First Restatement section 542 says the benefit will run to assigns of any interest in the land, not just to assigns of an estate of the same duration as held by the original promisee.
Vertical Privity- Restatement of Servitudes view
Restatement of Servitudes section 5.2 discards the requirement of vertical privity for running of both the burden and the benefit. Instead, the Restatement draws a distinction between affirmative and negative covenants. Negative covenants are treated like easements, which run to successors because they are interests in land. Affirmative covenants, requiring the burdened owner to perform an act, are treated differently because they are viewed as more onerous
than negative covenants. The burdens and benefits of affirmative covenants run to persons who succeed to an estate of the same duration as owned by the original parties, including in most cases an adverse possessor. But affirmative covenants do not run to persons who hold lesser estates than those held by the original parties to the covenant. Special rules are set forth for when affirmative burdens run to lessees and life tenants, who must perform them, and when they can enforce the benefit.
Vertical privity- exception- homeowner's association
A homeowners’ association may sue to enforce the benefit of a covenant even though the association succeeds to no land owned by the original promisee. The homeowners’ association is regarded as the agent of the real parties in interest who own the land.
Horizontal privity
The term used to describe the relationship between the original promisor and promisee—the parties to the cove-
nant.
Vertical privity
The term used to describe the relationship between an original party to the covenant and an assignee.
Touch and Concern
For the burden to run with the burdened land, the covenant must touch and concern the burdened land. Likewise, for the benefit to run with the benefited land, the covenant must touch and concern the benefited land.
Notice
A bona fide purchaser of the burdened land is not bound at law if he has no notice of the covenant.
Liability of original promisor after assignment
After the promisor assigns the land, does the promisor remain personally liable on the contract? If the covenant is a promise to do or not to do some act on the burdened land, the covenantor has no liability after assignment. The covenantor has no control over the land after assignment, so it would be unfair to hold him liable for performance of the covenant by the assignee or subse-
quent assignees. With this type of covenant, the courts imply that the parties intended that the covenantor’s liability cease with assignment.
Equitable servitude
A covenant—whether or not running with the land
at law—that equity will enforce against assignees of the burdened land who have notice of the covenant. The usual equitable remedy granted is an injunction against violation of the covenant.
Exam Tip
When answering exam questions, be sure to remember that the crucial difference between real covenants and equitable servitudes is the remedy sought. If money damages are sought, you must use the real covenant analysis. If a party seeks an injunction, you must consider whether the requirements for enforcement as an equitable servitude have been met. A single promise can create both a real covenant and an equitable servitude.
Equitable servitude- creation
A real covenant must be in writing. In many states an equitable servitude will be implied
Equitable servitude- Privity of estate
Horizontal privity of estate is not required in equity. Nor is vertical privity required for the burden to run. The court, in enforcing an equitable servitude, is enforcing an interest in land analogous to an easement, which is enforceable against any person who interferes with it.
On the other hand, when a person other than the original promisee is enforcing the benefit, in some states such person must show that he acquired title to his land from the promisee, either before or after the original covenant was made.
Exam tip
In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, in most states no privity of estate is required for an equitable servitude to be enforceable by and against assignees.
Touch and concern
Both real covenants and equitable servitudes require that the covenant touch and concern land. Neither is enforceable against a subsequent bona fide purchaser without notice of the covenant.
Restatement of Servitudes position
The Restatement of Servitudes applies the same rules to real covenants and equitable servitudes, thus abolishing any distinction between them.
Equitable Servitudes- Creation
Inasmuch as an equitable servitude is an interest in land, most courts hold that the Statute of Frauds requires a writing signed by the promisor. As with real covenants, acceptance of a deed signed only by the grantor binds the grantee as promisor. However, there is one important exception to the requirement of a writing: Negative equitable servitudes may be implied from a general plan for development of a residential subdivision.
Equitable Servitudes- implied from a general plan
A court will imply a reciprocal negative servitude only if the evidence shows that the developer had a reasonably uniform general plan for development of all lots of the same character. On the basis of this general plan, it is inferred that the purchasers bought in reliance on the
general plan and in the expectation of being able to enforce subsequently created equitable servitudes similar or identical to the restrictions imposed on their lots.
Equitable Servitudes- evidence of a general plan
The general plan must exist at the time the developer sells the first burdened lot within the general plan. If the plan arises later, it cannot impose burdens on lots previously sold without the burdens. Evidence of a general plan includes a recorded plat with restrictions, the developer exhibiting to buyers a map or plat of the entire tract on which restrictions appear, oral representations of the developer with respect to
restrictions to be imposed on the remaining land, and statements made in sales brochures or advertising. Or, a general plan can be shown by the fact that the developer inserted similar covenants in a substantial number of the deeds in the subdivision prior to the deed to defendant. Restrictions inserted in other deeds after the deed to defendant do not show a general plan at the necessary time.
Exam Tip
Questions involving negative servitudes implied from a general plan are fairly common on law school exams and fairly easy to spot. They almost always will involve a general plan for an exclusively residential subdivision and a purchaser who wants to intrude with a commercial use. You should enforce the negative servitude (i.e., prohibit the commercial use) if there is evidence that (i) the developer had a plan calling for development of all the lots in the same character and (ii) the plan existed no later than the time the parcel in question was sold.
Kind of servitude implied
A servitude similar to a reciprocal negative easement is implied. This label is quite descriptive. The servitude must be reciprocal; i.e., a similar covenant must bind other lots in the subdivision. It must be a negative or
restrictive covenant, forbidding some use of land; the court will not imply affirmative covenants, requiring the purchasers to do something. And the servitude is in the nature of an easement; i.e., it is an interest in land.
Covenants not implied
Some courts refuse to imply reciprocal negative servitudes in a residential subdivision. In California, an equitable servitude must be created by a written instrument identifying the burdened lot. It will not be implied from the existence of restrictions on other lots in a subdivision
Using a general plan to show the benefit
Even in jurisdictions that do not imply restrictions from a general plan, a general plan can be used to show who the developer intended to have the benefit of written restrictions on other lots. If there is a general plan, then
prior and subsequent purchasers of lots within a subdivision can enforce a written restriction on a restricted lot. It is inferred from the plan that the developer intended to confer a benefit on all lot owners. A general plan can be used to determine who
can enforce restrictions in jurisdictions that imply restrictions from a general plan as well as in jurisdictions that do not imply restrictions.

Example: Developer, owner of 50 lots in a subdivision, sells these lots with restrictions limiting use to residential purposes only. The deeds do not indicate who has the power to enforce the restrictions. If the developerhas a general plan of substantial uniformity, all purchasers in the subdivision—whether they buy their lots before or after the owner they are suing—can enforce the restrictions.
Developer's right to modify
If the developer retains the right to modify the restrictions imposed on lots to be sold in the future, some cases have held that this is evidence of intent to benefit the developer personally and not the neighbors in the subdivision. The retention of the right to modify may negate the existence of enforcement rights in the lot owners. On the other hand, several cases and Restatement of Servitudes take the position that the developer’s right to modify does not destroy the power of the lot owners to enforce the general plan as it finally takes form.
Equitable Servitudes- Enforcement By or Against Assignees
The contracting parties must intend that the servitude be enforceable by and against assignees. No technical words such as “assigns” (possibly required for a covenant to run at law) are required. The court ascertains intent from the purpose of the covenant and the surrounding circumstances.
Equitable Servitudes- Privity of estate
Privity of estate is relevant in equity only when the person trying to enforce the benefit does not own land that was once owned by the original promisee. In some states, such a person cannot enforce the benefit.
Ghost of privity
Privity of estate, somewhat redefined, survives in a few states as a requirement for enforcing an equitable servitude. The person seeking to enforce the covenant must trace his title to the original promisee. In describing this requirement, courts say the plaintiff must be in “privity of estate” with the original promisee. Under this requirement, all purchasers in a subdivision can enforce a restriction imposed by the developer, because they trace title from the developer. But a third party
who did not buy any land from the person imposing the restriction cannot enforce the restriction. Similarly, a third party that owns no land cannot enforce a restriction because the party cannot trace title to land from the developer.
Third party beneficiary theory
In a large majority of states, any third-party beneficiary can enforce a covenant in law or in equity if the contracting parties so intend. This follows modern contract law, which puts no restrictions on the kinds of
third-party beneficiaries who can enforce contracts. In these jurisdictions, privity of estate is irrelevant in enforcing equitable servitudes.
Distinguish-easements from equitable servitudes
an equitable servitude analogous to a negative easement can be enforced by third parties.
Touch and concern requirement
For the burden to run with the burdened land in equity as well as in law, the covenant must touch and concern the burdened land. And likewise, for the benefit to run with the benefited land, the covenant must touch and concern the benefited land. Equity generally applies the same touch and concern test as is applied at law. It is difficult to give any but the most generalized statement of the meaning of “touch and concern.” Early cases asked whether the covenant burdens or benefits a party in
the physical use or enjoyment of particular land, but this proved too narrow a test. Some covenants, particularly negative covenants, merely enhance the value of the benefited land, but they have been held to touch and concern the benefited land as well as the burdened land.
Negative covenants- touch and concern
Covenants not to do a physical act (e.g., not to erect commercial buildings) touch and concern. These covenants affect the burdened owner in the physical use of his land. Restrictive covenants also enhance the value of the benefited land, even though they may not affect the benefited owner in the physical use of his land. Covenants containing building restrictions, enhancing the value of the benefited land, have always been held to touch and concern.
Covenants not to compete- Burden side
A covenant not to compete restricts the promisor in the
physical use he may make of his land. Hence, it touches
and concerns the burdened land as much as a covenant restricting the property to residential use. Most courts have so held, provided the covenant is reasonable in its duration and in the area it encompasses.
Covenants not to compete- Benefit side
The benefit of a covenant not to compete clearly enhances the value of the covenantee’s land, but it is debatable whether it affects him in the physical use of his land. Nevertheless, a majority of courts hold that enhancement of commercial value is enough to satisfy the requirement of touch and concern.
performance off land
If the act is to be performed off the burdened land, without benefiting the burdened land, the covenant does not touch and concern the burdened land.: On the other hand, if the act to be performed off the burdened land benefits the burdened land, the covenant does touch and concern. A typical covenant of the latter type is a promise to perform (or not perform) an act regarding maintenance of common areas in a condominium.
Covenants to pay money
Covenants to pay money for some improvement that benefits the promisor by enhancing the value of his property touch and concern even though the improvements are on other land.
Restatement view
The Restatement provides separate grounds for refusing to enforce a servitude at its inception and for refusing to enforce a servitude which, although reasonable in the beginning, subsequently becomes unreasonable.
Covenants with benefit in gross
When the benefit of a covenant does not touch and concern land (i.e., is in gross), the majority rule is that the burden will not run. In other words, the burden will not run unless the benefit is tied to land.
English rule
refused to recognize an easement in gross. Easements
must be tied to land. When the equitable servitude developed, they viewed it as an “interest analogous to a negative easement.” Therefore, quite logically, the English courts held that the burden of an equitable servitude (analogous to a legal easement) will not run if the benefit is in gross. For a servitude to run, there must be both a servient and a dominant tenement.
American law- equitable servitudes
In this country, easements in gross are recognized, and the burden of the easement runs with the land. Therefore, if an equitable servitude is an “interest analogous to an [American] easement,” the burden should run even if the benefit is in gross.
American law- real covenants
Although the analogy to legal easements is not made with respect to real covenants, it has been held that the policies underlying the rule in equity are applicable to covenants at law. Thus, if a covenant will not run in equity because the benefit is in gross, neither will a covenant run at law.
Notice
If the assignee is a subsequent purchaser for valuable consideration without notice of the servitude, he does not take subject to it. If the assignee has notice, he is bound if the servitude is otherwise enforceable. Notice can be actual, record, or inquiry.
Actual notice
If the assignee has actual knowledge of the covenant in a prior deed, he clearly has notice.
Record notice
If the covenant is in a deed to the assignee’s lot, he has record notice. If the covenant is in a deed or deeds to other lots in a subdivision conveyed by the developer to prior grantees, the assignee has record notice if the deeds to neighboring lots are in the assignee’s chain of title
Inquiry notice
At least one court has held that a purchaser buying into a built-up residential area where the houses appear to have been built in accordance with a plan should look at the other deeds out from the developer to see if any basis for an implied covenant exists. Regardless of whether such prior deeds are in the purchaser’s chain of title, the lay of the land puts him on inquiry notice to look at the deeds of the neighboring lots from the developer
Construction of covenants
A covenant will be construed so as to carry out the intention of the parties in light of the purpose of the covenant.
Fair housing act
The federal Fair Housing Act prohibits discrimination against handicapped persons in the sale or rental of a dwelling. Discrimination also includes a refusal to make reasonable accommodations when necessary to afford handicapped persons equal opportunity to use a dwelling. Enforcement of a residential covenant against
a group home for the disabled—even if the term “single-family” is construed to exclude group homes—is a violation of the Fair Housing Act
Racial restriction
A covenant prohibiting use of the property by a person of a particular race cannot be enforced by the courts. Judicial enforcement of racial covenants is state action (action by the state) which deprives a person of equal protection of the laws. Racially discriminatory action by the executive, legislative, or judicial branches of the state is forbidden by the Constitution. Thus, although the cov-
enant is not void, it cannot be enforced
Termination of Covenants and Servitudes- Merger
If the title to the land benefited and the title to the land burdened come into the hands of one person, real covenants and equitable servitudes, like easements, merge into the fee simple and cease to exist
Equitable defenses to enforcement- Estoppel
If a benefited party acts in such a way as to lead a reasonable person to believe that the covenant was abandoned, and the burdened party acts in reliance thereon, the benefited party may be estopped to enforce the covenant.
Equitable defenses to enforcement- Relative hardship
As a general rule, a court of equity may deny an injunction when the hardship to the defendant is great and the benefit to the plaintiff is small. But where the right to the benefit of a servitude is clear, the defense of disproportionate harm and benefit is usually not persuasive.
Equitable defenses to enforcement- Change of condition in neighborhood
The most frequently asserted defense to equitable enforcement of a servitude is that the character of the neighborhood has so changed that it is impossible any longer to secure in substantial degree the benefits of the
restrictive covenants. If this is shown, equity will refuse to enforce the covenant. Courts require either that (i) the change outside the subdivision must be so pervasive as to make all lots in the subdivision unsuitable for the permitted uses, or (ii) substantial change must have occurred within the subdivision itself. Change outside the subdivision that affects only the border lots in a subdivision is not sufficient to prevent enforcement of
the covenant against the border lots.
Abandonment
an affirmative covenant, such as an obliga-
tion to pay money, cannot be abandoned. One cannot walk away from an obligation and terminate liability. But this means that affirmative covenants may be onerous, because all of the landowner’s assets may be reached to pay the obligation.
Eminent domain
When the government by eminent domain takes title to the burdened land and condemns the covenant as well, the majority rule is that the government must pay damages to the owner of the benefited land. The measure of damages usually is the difference in value of the benefited lot with and without the benefit of the covenant. The underlying theory is that a real covenant or equitable servitude is a property interest analogous to an easement, and it must be paid for when removed by the government.
Restrictions in originating documents
Restrictions appearing in the originating document have a very strong presumption of validity. The trend is to strike down these original covenants only if they are arbitrary or violative of public policy or a constitutional right. The reason for this distinction is that buyers voluntarily agree to be governed by these terms when
they buy in and are entitled to rely on the enforceability of restrictions in an originating document.
Restrictions subsequently adopted
The reliance interest of the buyers is not so strong with respect to subsequent changes. Here courts may balance the importance of the new rule’s objective with the importance of the individual interest infringed upon
Expenses of maintenance
The statute or condominium declaration should, and ordinarily does, provide that unit owners are liable for their shares of common expenses. The provisions for financial contributions are covenants, and to be en-
forceable against subsequent purchasers must comply with the requirements for covenants running with the land in law or equity
Enforcing payment
Most declarations and some statutes provide for the imposition of a lien to enforce collection of assessments for common expenses. This lien may be foreclosed by the management in the same manner as a mortgage on real property
Tort liability
Individual unit owners are, of course, subject to tort liability for injuries occurring inside their respective units. In addition, all of the unit owners are jointly liable for injuries occurring in the common areas that they own
as tenants in common. The owners’ association may also be liable for such injuries (on the ground that it has assumed management and control of the common areas), but this has no effect on the owners’ personal li-
ability. As a practical matter, each purchaser of a condominium unit will have to make sure the owners’ association maintains adequate liability insurance to cover her personal liability for such injuries. Tortious conduct for which owners are liable includes failure to maintain common areas such as halls, elevators, and boilers; failure to supervise pools or playgrounds where children congregate; violation of housing codes, etc.
Restrictions on transfer
Restrictions are often imposed on the transfer of a condominium unit
Restraints on alienation
The courts have been more tolerant of restraints on a condominium unit, because of the interdependent ownership, and the rule appears to be that a restraint is valid if it is a reasonable means of accomplishing valid objectives
Cooperatives
the residents in a cooperative are both tenants (under their leases with the cooperative corporation) and owners of the cooperative corporation (by virtue of
stock interests).
Liability for taxes, maintenance, and repairs
Repairs within each apartment are the responsibility of each tenant (the lease normally so provides). Taxes and repairs to the building exterior and common areas are normally the responsibility of the cooperative corporation. If the rent payments are insufficient, the corporation raises the rent accordingly so that each tenant ends up paying her proportionate share.
Restrictions on transfer- coops
Normally both the lease and stock interest of each tenant are subject to restrictions on transfer. The purpose of these restrictions is to assure the remaining tenants that the new tenant will be compatible and financially responsible.
Restraint on alienation
The cooperative owners own leaseholds, not fees simple. Most cases hold that inasmuch as a restraint on a leasehold is valid, as is a restraint on sale of stock, a restraint on sale of a cooperative apartment is valid. However, the courts are split over whether the cooperative corporation can arbitrarily withhold its consent to transfer. New York holds that it may. Most courts apply a reasonableness test to restrictions on transfer of a cooperative apartment. The restriction must be reasonably tailored to the purposes of assuring financial responsibility and social compatibility. The application of the restriction to particular buyers is reviewable by a court
Preemptive option
Rather than retaining the right to veto the transfer, the cooperative corporation may retain the right of first refusal (a preemptive option) if any member wishes to sell her stock and lease. Preemptive options restrain
alienation, and to be valid must be reasonable in purpose and duration.
Termination of lease
The corporation may terminate the lease if the tenant fails to pay her assessed share of common expenses or violates rules of conduct established by the corporation.
Limitation
The rules of conduct promulgated by the board of directors are unenforceable if they are arbitrary or unreasonable