Property Ii

Front 1

Covenant running with land

Back 1

Whenever one who is not the original promisee is allowed to enforce a contract respecting land.Benefits/burdens of covenants running with interests in land.Must identify the benefit and burden. Then identify the interest. Must break it down per section.

Front 2

Covenant

Back 2

An ordinary promise. Interest in land. Non-possessory interest. There will be a burden and a benefit.

Front 3

Servitude

Back 3

Combines Covenants and Easements.

Front 4

Covenant Analysis Steps

Back 4

1st step-Identify the benefit and the burden. Ex. Burden, Pay x amount a month. Benefit, you receive x amount a month.

2nd Step-Identify interest in land each is associated with

3rd Step-Determine if either interest has been transferred.

4th Step-If yes to Step 3, then does the benefit/burden run with the interest.

Is the test at law? Or;

Damages is a legal remedy in equity?

An injunction Depends on the remedy.

Front 5

Thrustonv. Minke

Back 5

Landlord leased vacant land to tenant. LL had restrictions on buildings to be built on the land. LL assigned his interest to another party, but didn’t transfer any interest in his adjacent hotel. The court held, the covenant benefitted not the LL's interest in the leased land but the LL's adjacent hotel land. Because the LL still owned the hotel, he still had the benefit of the covenant and could maintain his action for an injunction against the tenant.

Front 6

Subject to a Condition Subsequent

Back 6

The covenants in the lease become conditions triggering a forfeiture as well

Front 7

Condition

Back 7

Implies that a breach may result in termination of the breaching party's interest in the land.

Front 8

Easement

Back 8

The right to use someone else's land for a limited purpose. Interest in land that are not possessory.

Front 9

Affirmative Covenant

Back 9

Require the owner of the burdened estate to perform some act or to pay money

Front 10

Negative Covenant

Back 10

Restrict or prohibit the uses that can be made of the burdened property.

Front 11

Elements necessary for a Real Covenant

Back 11

1) Intent to Bind Successors

2) Touch and Concern

3) Privity of Estate

a) Horizontal Privity

b) Vertical Privity

Front 12

Elements necessary for Equitable Servitude

Back 12

1) Intent to Bind Successors

2) Touch and Concern

3) Notice

Front 13

Touching and Concerning the Land

Back 13

If the promisor's legal relations in respect to the land in question are lessened,the burden of the covenant touches or concerns that land.

Front 14

Three Test for meeting the Touching and Concern Element.

Back 14

1) Clark- Where the parties would naturally regard the covenant as intimately bound up with the land, aiding the promisee as landowner or hampering the promisor in similar capacity, the requirement should be held fulfilled.

2) Bigelow- If the promisor's legal relations in respect to the land in question are lessened, the burden of the covenant touches or concerns that land. If the promisee's legal relations in respect to that land are increased, the benefit of the covenant touches or concerns that land.

3) Traditional- what has traditionally been held that touches and concerns the land?

Front 15

Test for Touch and Concerning the Land

Back 15

1) Touch and Concern.

2) Must have the necessary intent that future owners would be bound, or able to enforce?

3) Privity of estate.

a) Have both horizontal privity and vertical privity. Landlord-Tennant relationship is always horizontal privity.

1) Vertical privity- the full estates of the original parties to the covenant have now passed to the individuals by and against whom enforcement of the covenant is sought.

2) Horizontal privity- the original covenant parties.

Front 16

Subsequent Owners

Back 16

are those persons who were not original parties to the contract, but who now own property that may be benefitted or burdened by a covenant entered into by a previous owner if the covenant runs with the land.

Front 17

Privity of Contract

Back 17

The subsequent owner will benefit or be bound only if the benefit or burden runs with the land.

Front 18

Horizontal Privity

Back 18

The necessary relationship between the original parties to the agreement for the covenant to run with the land.

Front 19

Vertical Privity

Back 19

The relationship between an original promisee or promisor to the contract and those subsequent purchasers tracing their interests in the benefitted or burdened property back to either of them.

Front 20

Notice

Back 20

When the person who purchases the burdened land they knew or should have known about the covenant.

Front 21

Howdoes Tenant get off the hook of obligations?

Back 21

Novation

Modification

Front 22

Novation

Back 22

an expressrelease of liability by the landlord. Creates a new contract. T1 is involved.

Front 23

Modification

Back 23

modifications of the lease terms by the landlord and the assignee, without theoriginal tenant's consent, after the assignment has taken place. (T1 is notinvolved)

Front 24

Impliedlease covenants

Back 24

nolonger binding on a landlord who has transferred the premises, unless thebreaches somehow resulted from his or her conduct.

Front 25

Burtonv. Chesapeake Box & Lumber Corp. (1950)

Required to carry fire insurance. Fire ruined building, no insurance.

Back 25

atenant's covenant to pay money will touch and concern only if the money must beused on the land itself.

Front 26

InvalidServitudes:

Back 26

1) Unreasonable directrestraints on alienation2) Those that have norational justification

3) Those that imposeunreasonable restraints on trade on competition

4) Those that areunconscionable

Front 27

Gerberv. Pecht (1954)

Lessor changed hands. Same lessee

Back 27

A lessee isreleased from liability upon assignment of a lease if the landlord and assigneeagree to materially vary the terms of the original lease.

Front 28

EndingDuties Under an Assumption

Back 28

Ifthe original lease is terminated, any assignment deriving from the master leaseis terminated as well.

Front 29

Who does anAssumptionAgreement apply to?

Back 29

Applyto all the tenant's covenants in the lease, not just those that touch andconcern the land. Also an Assumption Agreement survives reassignment by theassignee, running covenants don't.

Front 30

Requirementsfor Covenants to Run "at law."

Back 30

1) Touch and concern

2) Privity, both horizontal and vertical

3) Intent to run; and

4) A writing.

Front 31

Equitable Servitude

Back 31

acovenant to do or not to do something regarding the use of land.

Front 32

Real covenants may not be implied, must be in writing.

True/False

Back 32

True

Front 33

Can Equitableservitudes be implied?

Back 33

Yes

Front 34

Remedies for a Real Covenant and an Equitable

Servitude

Back 34

1) Real covenants provide damages.

2) Equitable servitudes provide injunctions or specific performance.

Front 35

Notice for Equitable Servitude

Back 35

1) Actual notice Burdened party was told of the servitude in his deed.

2) Record notice Burdened party found the servitude in the historical record of the deed (or should have).

3) Constructive/inquiry notice Burdened party should have known of the restriction because of the conditions of the lots around him.

Front 36

Termination of Covenants and Equitable Servitudes

Back 36

1) Terms of the Covenant.

2) Merger

3) Release.

4) Rescission

5) Unclean hands

6) Abandonment

7) Estoppel

8) Changed Conditions

9) Recording Acts. (real covenant and equitable servitudes are recordable).