Property II - Real Covenants & Equitable Servitudes
Terms
undefined, object
copy deck
- What is a Real Covenant
- A K between two parties which, has the additional quality that is is binding against one who later buys the promisor's land, and/or is enforceable by future owners.
- Elements of Real Covenants
-
1. Intent
2. Touch and Concern
3. Privity
4. Writing (Most Courts) - Definition of "Intent" for Real Covenants
- Original covenanting parties must make clear the benefit/burden will pass to successors of the land. This is a subjective requirement, generally a question of fact.
- Subjective Factors of "Intent" for Real Covenants
-
1. Express intent and language (look for "heirs and assigns")
2. Uncertain time of performance, not necessarily going to occur within that persons time of title.
3. Benefit to adjacent land
4. Consistently maintained that the covenant run w/ the land. - Definition of "Touch and Concern" for Real Covenants
- A covenant to run with the land must extend to the land, so that the thing required to be done will affect the quality, value, or mode or enjoyment of the estate conveyed.
- Bigelow Test for determining "Touch and Concern"
-
1. Burden - If the covenantor's legal interest is rendered less valuable by teh covenant's performance then burden satisfies the T&C requirement.
2. Benefit - If the covenantee's legal interest is rendered more valuable by the covenant's performance then the benefit satisfies the T&C requirement. - Definition of "Privity" for Real Covenants
- Land transfer between the promisor/promisee plus a succession of estate from promisor to assignees.
- Types of "Privity" for Real Covenants
-
1. Mutual Privity
2. Horizontal Privity
3. Vertical Privity - Requirement of "Mutual Privity" for Real Covenants
- Requires that the original parties have had a mutual and continuing interest in the same land.
- Requirement of "Horizontal Privity" for Real Covenants
- Requires that the covenant be made in connection with the conveyance of an estate in fee from one of the parties to the other. Some courts require this type of privity (and vertical).
- Requirement of "Vertical Privity" for Real Covenants
- Requires only that the person presently claiming the benefit or being subjected to the burden is a successsor to teh estate of the original person so benefitted or burdened.
- Modern View of "Privity" element for Real Covenants
- No more than vertical privity is required, but some states will require both vertical and horizontal privity.
- Agency Relationship and Relaxed Privity
- Some jurisdictions allow the agency relationship and relax privity to let outside organziations who somehow advance the common interest of the acutal owners (HOA) to be considered in privity.
- Requirement of "Writing" for Real Covenants
- Where the SOF requires, the covenant must be in writing. This writing must be signed by the grantor and sometimes the party charged.
- What is an Equitable Servitude
- When an equitable remedy is sought (i.e. specific performance or an injunction) and is awarded against an assignee of the original promisor, they are deemed to have an equitable servitude.
- Definition of "Equitable Remedy"
- If an equity is attacehd to teh property by the owner, no one purchasing with notice of that equity can tand in a different situation from the party from whom he purchased.
- Elements of Equitable Servitudes
-
1. Intent
2. Touch & Concern
3. Notice
4. Writing (Sometimes) - Element of "Intent" for Equitable Servitudes
- Subjective Intent; Look to any language or facts that may show the intent of the parties to have the servitude (less rigid than Real Covenants)
- Element of "Touch & Concern" for Equitable Servitudes
- The courts are more loose in determining what kind of benefit or burden touches and concerns the land.
- Element of "Notice" for Equitable Servitudes
- Most important thing to remember about ES, may be actual or constructive, depending on jurisdiction.
- Types of Notice for Equitable Servitudes
-
1. Actual
2. Inquiry
3. Your Chain - Definition of "Actual" Notice
- Knowledge of covenants in prior deed. If the subsequent purchaser had knowledge of the restriction, it doesn't matter if this is actually recorded or not.
- Definition of "Inquiry" Notice
- Not expressed. Put on inquiry notice by common schemes and surround circumstances.
- Factors of Common Schemes
-
1. Look for strict uniformity
2. Duty to make an inquiry includes, but not limited to, asking neighbors and searching the land records. - Majority Approach to Common Schemes
- Overruled the "first deed" approach with common schemes and now says that the restriction must be within the specific chain of title of that land.
- Meaning of "Your Chain" for Notice element of Equitable Servitudes
- Think Vertical Privity when looking at "Your Chain". A person will be deemed to be on notice if he/she has constructive notice of the restriction. Most importantly, if this is preperly recorded, then you will be deemed to have notice.
- Affirmative v. Negative Restrictions
-
Servitudes are normally negative restrictions.
A negative restriction means the owner is restricted from doing something, or a promise NOT to do something.
An affirmative restriction involves a promise to do something. - Public Policy and Constitutional Limits on Covenants and Servitudes
- Covenants and Servitudes are subject to the constitutional provisions of the 14th Amendment. This includes race (duty to protect against discrimination) and mentally handicapped (duty to protect).
- General Rule of Constructing Restrictive Covenants
- Restrictive Covenants were strictly construed but this is no longer operative.
- Modern View of Constructing Restrictive Covenants
-
Rather than strictly reading teh restrictions, the modern era takes surrounding circumstances into consideration including:
1. Character
2. Location
3. Intent of the parties - Modification and Termination of Restrictive Covenants
-
Generally the modification of restrictive covenants when reserved to the right of the grantor will not be upheld because there is no reciprocity which is necessary to create a covenant that runs with the land. The subsequent grantees in this case have no assurance that the covanent will not change or terminate without their consent.
Note: Some courts will allow modifications so long as the power to modify or terminate the restrictions is exercised reasonably. - ??? Administration and Enforcement of Restrictive Covenants ???
- Approval by architectural committees as long as the intention is clear and stuck to.