understanding property equitable servitudes flash cards

7/29/2019 Understanding Property Equitable Servitudes Flash Cards

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Equitable Servitudes


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Topics Covered


3/40

Which is easier enforcing a

promise as a real covenant or as an

equitable servitude?


4/40

It is generally easier to enforce a

promise as an equitable servitude

than as a real covenant because

horizontal and vertical privity are

not required.


5/40

What is the remedy for violating an



6/40

The usual remedy for violation of

an equitable servitude is injunctive

relief, which often provides more

effective relief than compensatory

damages.


7/40

What is an equitable servitude?


8/40

An equitable servitude is a promise

concerning the use of land that (1)

benefits and burdens the original

parties and their successors and

(2) is enforceable in equity.


9/40

What is the difference between the

equitable servitude and the real

covenant?


10/40

First, the standard for enforcing a promise as an equitableservitude is easier to meet than the parallel standard for a

real covenant

Second, a broader array of defenses applies to the equitable

servitude

Third, the traditional remedy for violation of an

equitable servitude is an injunction, not damages


11/40

What are the requirements for a

burden to run when dealing with an



12/40

(1) the promise must be in writing or implied from a"common plan";

(2) the original parties must intend to bind successors;(3) the promise must "touch and concern" land; and(4) the successor must have notice of the promise.10

Neither horizontal privity nor vertical privity is required.


13/40

What is the common plan or

scheme doctrine?


14/40

where a developer manifests a

"common plan" to impose uniform

restrictions on a subdivision, most

courts will find implied equitableservitudes even without a writing.


15/40

Does a devisee, heir, or other donee

qualify for protection as a bona fide

purchaser under the American Rule?


16/40

A devisee, heir, or other donee cannot

qualify for protection as a bona fide

purchaser; under the American rule, a

donee is bound by a prior promise evenwithout notice.


17/40

When dealing with equitable servitude,

what is needed for the benefit to run?


18/40

(1) the promise must be in writing or implied froma "common plan"

(2) the original parties must intend to benefitsuccessors

(3) the promise must "touch and concern" land


19/40

When do courts agree that an

equitable servitude will be implied

in equity?


20/40

If a developer manifests a common plan or common scheme toimpose uniform restrictions on a subdivision, most courts

conclude that an equitable servitude will be implied in equity.23

The common plan or scheme is viewed as an implied promise by

the developer to impose the same restrictions on all the retained

lots. Under this approach, every lot in the subdivision is bothburdened and benefited by the restriction. No lot owner may

violate the restriction; and any lot owner can enforce the

restriction against another.


21/40

What are the defenses to an



22/40

(1) anti-discrimination protections(2) changed conditions(3) release,(4) abandonment,(5) merger, and(6) eminent domain


23/40

What is the most common defense usedfor enforcement of a promise as an



24/40

The most commonly-asserted defenseto enforcement of a promise as an

equitable servitude is changed

conditions.


25/40

What is Acquiescence?


26/40

Another defense, The plaintiff whoignores violations of a promise by some

owners-but

seeks to enforce the same promiseagainst the defendant will lose due to

acquiescence.


27/40

What is estoppel?


28/40

If the plaintiff manifests an intentionnot to enforce a land use promise and

the-defendant reasonably relies on this

conduct to his or her detriment, thedefense of estoppel is available.


29/40

What is laches?


30/40

The defense of laches arises whenthe plaintiffs unreasonable delay in

enforcing a promise causes

substantial prejudice to the

defendant.


31/40

What do courts consider whendeciding on whether the plaintiff

will receive and injunction or

another equitable relief?


32/40

As a general rule, courts traditionallyconsider the relative hardship to the

parties in deciding whether the

successful plaintiff will receive aninjunction or other equitable relief.


33/40

What is the doctrine of unclean hands?


34/40

The doctrine of unclean hands preventsa plaintiff who has violated a promise

from seeking to enforce it in equity

against another party.


35/40

What are the remedies for breach ofequitable servitudes?


36/40

The standard remedy for breach of anequitable servitude is an injunction.


37/40

Under the restatement, what is neededto create an equitable servitude?


38/40

1. The parties intend to create a servitude2. The servitude complies with the statute of

frauds

3. The servitude is not illegal, unconstitutional,or violative of public policy.


39/40

Under the restatement what are theremedies of a equitable servitude?


40/40

Under the Restatement, a servitude maybe enforced by any legal or equitable

remedy, including compensatory

damages, punitive damages,injunctions, restitution, imposition of

liens, or declaratory relief.

understanding property equitable servitudes flash cards

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