Glossary of Property - Covenants
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- What is a covenant running with the land/real covenant?
- Promise related to land that is enforceable by and against subseq holders of the land - rights and duties of the covenant run with the land, not the parties.
One original party no longer holds the land.
- How do easements differ from real covenants and equitable servitudes?
- Easements generally deal with the rigt to use property; covenants and es generally restrict the use of land.
Neg easement - promise not to do s/t with one's own land - really are covenants and are considered either real covenants or es.
- What is a "burden"?
- Lessens the land's use or value to the covenantor (the one who's promising to do or not to do s/t). It runs with the burdened or servient estate.
- What is a "benefit"?
- Exists when the covenant improves the use or value of the covenatee's land (the one who can enforce the other party's promise to do or not to do so/t). It runs witht he benefited or dominant estate.
- How are benefits and burdens treated?
- Both benefit and burden m/ run in order for subseq asignees to enforce the covenant against other assignees.
Both require a writing, touch and concern, intent to run, and privity.
Burden requires entire estate to be conveyed; horizontal privity; notice to run.
Benefit requires only possession of some interest;
- How do you analyze a RC?
- 1. when it was created, did the covenant comply with SOF (was it in writing?) If so,
2. Are you looking at a subseq holder of hte benefit or the burden? If looking at land that is burdened, then determine whether burden runs. If looking at land that is benefited by the covenant, determining whether the benefit runs.
3. For burden - did the successor have notice of the burden before buying the land? If not, the burden d/n bind the successor.
4. Did the original covenanting parties intend to bind their successors? If there is express language (heirs, successors and assigns), intent is clear. If there is no language, most imply intent if the agreement touches and concerns the land.
5. Does the covenant touch and concern the land? If looking at burden,
6. Is the covenant positive or negative - has the burdened property owner agreed to do something or agreed not to do something?
7. If positive, did the burdenened property owner's promise consist of performing a stated act or undertaking a named use of the burdened land that reduces the land's value or use to him? If so, it touches and concerns the land. If not, it d/n touch and concern the land, and c/n run with the land.
8. Did the burdened property owner's promise consist of not conducting a stated activity on, or making a stated use of, the burdened land? If so, it touches and concerns. If not, it d/n touch and concern and d/n run with the land.
9. Is the covenant positive or negative, has the burdened property owner agreed to do something or has he agreed not to do something?
10. Does the performance of the covenant increase the use or value of the benefited land? If so, it touches and concerns the benfited land, if not it d/n touch and concern and d/n run with the land.
11. Does the promise increase the use/value of the benefited land? If so, it touches and concerns, if not it c/n run with the land.
12. Is there privity of estate?
13. If looking at the burden, is there horizontal privity? Look at original covenanting parties, did the covenant accompany the transfer of an interest in land b/w them (L/T, G/G)? If so, there is HP, if not, it d/n run with the land.
14. If burden, is there vertical privity? Look at the rel't b/w the covenanting party and successor in interest. Did the successor in interest take the entire estate? If so, there is VP, if not c/n run with the land.
15. If benefit, is there VP? Look at rel't b/w the covenanting party and successor in interest. Did successor take possession of some of estate? If so, there is VP, if not, it d/n run with the land.
- What are the requirements of a covenant running with the land?
- M/b in writing - comply with SOF, then determine burdened and benefit side - Both require:
1. parties m/h INTENDED that the agreement w/ run with the land
2. agreement m/ TOUCH AND CONCERN the land
3. there m/b PRIVITY OF ESTATE b/w the parties.
However, the burden, not the benefit, requires NOTICE.
SPIN CAT (SOF, Priv, Int, Not, Con and Touch)
- When w/ a RC terminate?
- Merger - benefited and burdened estates come under one ownership
Eminent domain - if burdened land is condemned and gov't takes covenant as well, the gov't m/ pay the benefited landowner damages reflecting the difference in value of the benefited land with and w/o the covenant
Fixed time - if parties so agree.
- When d/ a RC touch and concern the land?
- For a burden, m/ reduce the land's use or value to the burdened property owner.
For a benefit, m/ improve the use or value of the benfited land.
- What is HP?
- Concerns the rel't b/w the original parties to the covenant. Required only for the burden to run, such that successors are bound by the covenant. Required in most sttates, m/ accompany the transfer of an interest in land b/w original covenanting party (L/T, G/G, M/M) - original covenanting parties c/n be strangers to each other's title (merely neighbors).
- What is VP?
- Concerns the rel't b/w each of the original parties and their successors in interest. For the burden to run from promisor to successors, entire estate m/b conveyed. For the benefit it run, successor m/ acquire a legal interest in the land and take possession.
- What is an equitable servitude?
- Promise by the holder of a piece of land to conduct a stated activity on or make a stated use of his property which is binding on his successors.
Starts out as a mere promise to the landholder, but if the promise satisfies the SOF, and it touches and concerns, intent and notice, it w/b binding on successors to the promisor - the burdened.
- What is the main difference b/w an ES and a RC?
- ES d/n require privity.
- What are the requirements for an equitable servitude to bind subseq purchasers?
- 1. Notice - whether actual, constructive, or implied.
2. Intent that it bind subseq purchasers
3. Benefit and burden both m/ touch and concern the land.
- What are the three types of notice that satisfy notice requirement?
- Actual notice - knowledge of covenant in current or prior deeds with same restrictions
Record/constructive - covenant appears in grantee's chain of title.
Inquiry/implied - physical appearance of neighborhood suggests common plan or restriction
- When will an ES be unenforceable?
1. purpose is contrary to public policy
3. laches or acquiscence to similar violations by others
4. unclean hands
5. no longer benefits
7. eminent domain.
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