Covenants

What are the two types of covenants? How do you identify the type of covenant?

(1) Real Covenant

(2) Equitable Servitudes

You know which type by determining what remedy the party is seeking in court.

Damages (Money) = Real Covenant

Injunction = Equitable Servitude

Real Covenants are more complicated and require more to “run with the land”.

What is a real covenant? What are its requirements to run with the land”?

A real covenant is an agreement between two parties concerning the use of land.

REQUIREMENTS

W = Writing; Original promise must be in writing

I = Intent; Original parties must have intended for the burden

T = Touch & Concern; the promise must touch and concern the land

H = Horizontal & Vertical Privity; Horizontal is privity between original parties (usually landlord/tenant;Grantor/Grantee) Vertical is privity between A1 & A2. No adverse possession allowed. MUST BE NON HOSTILE

N = Notice; The burdened property must have notice of covenant BEFORE acquiring the property

Note: common major obstacle is establish horizontal privity and succession of estate

What is the difference between the requirements for running of the benefit of a Real Covenant vs. running of the burden of a Real Covenant?

Running of the benefit is the same as the running of the burden EXCEPT you don’t need

(1) horizontal privity

(2) Notice

Note : Vertical Privity is still required. (A1-A2)

What is an Equitable servitude?

It is an agreement between two parties concerning the use of the land.

• It is a covenant

• Requesting an injunction = equitable servitude

What is a covenant?

An agreement about the use or non-use related to land.

• The creation of covenants are ONLY by agreement in writing

• There are two types