EASEMENTS III: COVENANTS AND EQUITABLE SERVITUDES

Dr. Tony Nettleman, RPLS, Esq.

YOU CAN ONLY PAINT YOUR HOUSE THREE SHADES OF WHITE

White House, Red Roof, Anyone?

IN ORDER TO HAVE A VALID COVENANT:

• It Must Be Enforceable

• The Original Covenanting Parties Must Intend That The Covenant Run With The Land

• Must Have Horizontal And Vertical Privity

• Purchaser Of Burdened Property Must Have Notice Of Covenant

COVENANT MUST BE ENFORCEABLE

• Not Unreasonable as a Matter of Public Policy

• Not Too Vague

• In Writing That Complies With Statute of Frauds

McHuron v. Grand Teton (1995)FACTS

• The new home included fiberglass shignles, not cedar

3) IN WRITING THAT COMPLIES WITH STATUTE TO PREVENT FRAUDS

• Identify the parties involved

• Identify the land being conveyed

• Express the grantor’s intent to convey the land to the grantee

• Include the signature of the grantor

STATUTE OF FRAUDS:INCLUDE THE SIGNATURE OF THE GRANTOR

COMMON LAW REQUIREMENTS

• The covenant must not be personal in nature - it must benefit the land rather than an individual

• The covenant must 'touch and concern' the land - it must affect how the land is used or the value of the land

• The benefited land must be identifiable.

HORIZONTAL PRIVITY

horizontal is privity of estate between original covenanting parties

ORIGINAL COVENANTING PARTIES: GRANTOR/GRANTEE

VERTICAL PRIVITY

Smith (1898)

Johnson (1921)

Able (1947)

Dickenson (1987)

YES or NO?

• Warranty deed• Quitclaim deed• Adverse possession• Prescriptive

easement

ACTUAL NOTICE

actual awareness or direct notification of a specific fact, demand, claim, or proceeding [had actual notice of the meeting] called also express notice