Property: Restrictive Covenants/equitable Servitudes/adverse Possession

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Restrictive Covenants

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A restrictive covenant gives the holder of the interest the right to restrict some 3rd party in the use of his land. Covenants and Equitable servitudes. Both include a written promise that imposes a restriction on the use of land. The only difference is the theory used to enforce the terms of the restriction. If Plaintiff wants damages -Covenant, if injunction - equitable servitude

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Four requirements to enforce a restrictive covenant

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Intent, Notice, Touch and Concern the Land and Privity

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Restrictive covenants: Intent

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Must intend the restriction to run with the land

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Restrictive covenants: Notice

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Notice to the person against whom enforcement is sought. Can be actual, constructive (imparted because restriction is contained in the deed and duly recorded in the buyer's direct chain of title. Inquiry Notice - The notice imparted from physical inspection of the property or by the deeds recorded in direct chain of title.

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Restrictve Covenants: Touch and Concern the Land

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If performance of the promise makes the land more valuable or useful, the covenant touches and concerns the land. Covenants not to compete can satisfy this touch and concern requirement.

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Restrictive Covenants: Privity

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Horizontal and Veritcal. If successor in interest is the Plaintiff, then we know that the person is trying to establish that the benefit of the covenant runs to Plaintiff . If the facts show that the successor in interest is the defendant, then we know that the plaintiff is suing in order to establish that th burden runs to bind the D.

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Privity: Burden

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Successor in interest is D - requires both Vertical Privity (those who subsequently obtain the property subject to the covenant. Must take the ENTIRE estate held by their predecessor).Horizontal Privity refers to the original parties to the promise. Two parties must share some interest in the land independent of the covenant. On exam there must be a conveyance of the property between the original parties.

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Privity: Benefit

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Requires Vertical privity only. Holder of any succeeding possessory estate may enforce the benefit of the promise as a covenant at alw.

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Four requirements to enforce the Burden of a covenant at law

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Intent, Notice, touch and concern and privity (since the successor in interest is the Defendant, both horizontal and vertical privity are requireed to enforce the burden of this promise.

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Three requirements to enforce the Benefit of a Covenant at Law

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Intent, Touch and Concern and Privity - Vertical privity only

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Equitable servitudes

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Three requirements to obtain an injunction to enforce the burden of the promise. Intent that the restriction be enforceable by Successors in interest, Touch and Concern the land, Notice to the subsequent purchaser (actual, constructive or inquiry), NO PRIVITY is required to enforce the burden of the promise in equity.

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Two requirements to enforce Benefit of a covenant as an equitable servitude

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Intent and touch and concern

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Enforcement of subdivision restrictions

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Reciprocal Negative Servitudes. This doctrine is relied on to allow each lot owner in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision.

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Requirements to establish a mutual right of enforcement

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Intent and Notice

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An Intent to impose a servitude

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An INTENT to impose a Servitude on all land in the subdivision. The requisite intent is usually reflected in the common building plan (reflected in the recorded map that showed the lots marked for residential use only and in the fact that all but a handful of lots were sold with deeds that restricted those lots to residential use only.

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Notice

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Actual notice, Constructive Notice (or Record Notice), or inquiry notice

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Defenses to Enforcement of Covenant as an Equitable Servitude

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Unclean Hands (same use), Acquiescense (let other neighbors do same thing), Laches (sat and watched him build) and Estoppel (represented that there were no problems)

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Termination of Covenants and Servitudes

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Deed of Release, Merger - Unity of Ownership and Changed Conditions: If all the lots in the entire subdivision are affected, then the use restriction will be eliminated. All or nothing proposition.

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Adverse Possession

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Statute of Limitations in Ejectment cut off the True Owenr's right to recover possession of her land. Once this statute runs, the True Owner loses title to the property.

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Six requirements for Adverse Possession

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HELUVA. Hostile, Exclusive, Lasting, Uninterrupted, Visible, Actual

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Doctrine of Constructive Adverse Possession

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expands the kernel of actual possession out to the full extent of the color of title under which the adverse possessor makes his claim of right ot property. Two limitations 1) amount of land actually possessed must bear a reasonable relationship to the whole 2) The property must be unitary, which means parcel of land must be one seamless whole.

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Adverse Possession: Leased Land

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Leasing land to a third party constitutes possession for purposes of adverse possession.

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Adverse possession against concurrent owners

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No adverse possession against a co-tenant unless the co-tenant in possession excludes the other co-tenants from possession and the statutory period runs. The exclusion starts the clock running for purposes of adverse possession.

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Adverse possession and future interests

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Life tenant and remainderman: The adverse possession clock does not start to run against the holder of a future interest until that interest becomes possessory. In the case of a FSD the happening of the condition starts the clock running. FSCS and Right of Re-entry: In the cas of an FSCS, the clock will not start to run until the Grantor exercises his right of entry.

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Tacking:

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An adverse possessor can tack together successive periods of adverse possession in order to satisfy the statutory period. Just as you can tack successive periods of adverse possession, you can tack successive periods of true ownership. No gaps in possession.

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Disabilities:

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If a true owner is suffering from Infancy, Incarceration or Insanity at the time the period of adverse possession beings, then the clock will not start to run until the true owner is free of the disability. If the disability was not in existence on the day the adverse possession beings it will not keep the clock from running. No tacking of disabilities.

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Title acquired by Adverse possession

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To make marketable there must be a court action to quiet title.