Restrictive covenants - Next Generation Bar Exam
- What is the changed-conditions defense to enforcement of a restrictive covenant?
- Conditions have changed so much that the covenant's original purpose can no longer be accomplished. Changes outside the subdivision alone are generally insufficient.
- What is the relationship between zoning and a private restrictive covenant?
- Each applies independently, and the more restrictive controls. A zoning change does not extinguish a private covenant.
- When does a covenant touch and concern the land?
- When it affects the parties' use or enjoyment of the land as owners. Promises to pay money for land improvements, such as association dues, generally touch and concern.
- What defenses may defeat enforcement of an equitable servitude?
- Changed conditions, abandonment, acquiescence, unclean hands, laches, and estoppel. These equitable defenses reflect the servitude's enforcement through injunction.
- What are the requirements for an equitable servitude to bind a successor?
- A writing, intent, touch and concern, and notice. Privity is not required, and the remedy is an injunction.
- Neighbors A and B, with no other transaction between them, sign and record a mutual covenant restricting fences. A's successor builds a fence. What remedy may B obtain?
- An injunction enforcing the covenant as an equitable servitude. Lack of horizontal privity bars damages but not equitable relief.
- What is vertical privity?
- A relationship between an original party and the successor, such as by transfer of the same estate. An adverse possessor lacks vertical privity.
- A developer sold 50 lots, each deed restricting use to single-family homes, but omitted the restriction from one deed. A buyer of that lot had notice of the plan. What is the status of the lot?
- It is bound by an implied reciprocal servitude. The common scheme and the buyer's notice support enforcement.
- What are the requirements for the benefit of a real covenant to run with the land?
- A writing, intent, touch and concern, and vertical privity. Horizontal privity and notice are not required for the benefit to run.
- What is horizontal privity?
- A relationship between the original covenanting parties, such as grantor and grantee, at the time of the covenant. Neighbors who covenant with no shared conveyance lack horizontal privity.
- What are the requirements for the burden of a real covenant to run with the land at law?
- A writing, intent, touch and concern, horizontal and vertical privity, and notice. Damages are the remedy for breach of a real covenant.
- What is a common scheme or general plan?
- A developer's plan imposing uniform restrictions on lots, allowing an implied reciprocal servitude. Lots sold without the restriction may be bound if the buyer had notice of the plan.
- What is a negative covenant?
- A promise to refrain from doing something on the land. Restrictions to residential use are a common example.