EQUITABLE SERVITUDES (Doctrine of Notice)

Q: When should you discuss an equitable servitude on an essay?

Whenever someone seeks to enforce a land-use restriction by injunction rather than money damages.

What is an equitable servitude?

Promise concerning land that equity will enforce against successors if elements are met

Q: What is the primary remedy for breach of an equitable servitude?

An injunction ordering compliance with the restriction or prohibiting the prohibited use.

How is an equitable servitude generally created?

• Written covenant but some jurisdictions by implication

Q: What are the elements required for the burden of an equitable servitude to run with the land? INT

• Intent

• Notice

• Touch and Concern

• (Note that unlike real covenants, horizontal privity is not required)

Q: What types of notice satisfy the notice requirement?

A successor may be bound if they have:

• Actual notice,

• Constructive notice (record), or

• Inquiry notice.

Q: What does "touch and concern" mean for an equitable servitude?

The promise must affect the property's use, value, or enjoyment rather than merely create a personal obligation.

Q: What is generally required for the benefit of an equitable servitude to run? IT

Must be:

• Intent and

• Benefit must touch and concern the benefitted land

Q: Is horizontal privity required for an equitable servitude?

No (majority)

Q: Why are equitable servitudes generally easier to enforce than real covenants?

• Because they generally:

  • Do not require horizontal privity

  • Focus on fairness rather than strict contractual relationships.

Q: If an exam asks whether a court should stop construction of a prohibited structure, which doctrine should you analyze?

An equitable servitude, because the requested remedy is an injunction.

Q: How are equitable servitudes generally terminated?

By the same methods that terminate easements, subject to several important exceptions.

Q: What is the "changed conditions" doctrine?

An equitable servitude may become unenforceable when surrounding changes are so substantial that the original purpose of the restriction can no longer be accomplished.

Q: What kind of changes are usually required before the changed-conditions doctrine applies?

Most courts require either:

• pervasive changes affecting the subdivision as a whole, or

• substantial internal changes making the restriction ineffective.

Changes affecting only a few border lots are generally insufficient.

Q: Does a zoning change alone terminate an equitable servitude?

• No.

If the servitude is more restrictive than the zoning ordinance, it may still be enforceable.

Q: Does adverse possession extinguish an equitable servitude?

• Generally no.

Adverse possession of the land does not, by itself, eliminate the restrictive covenant.

Q: Can an equitable servitude be enforced against a bona fide purchaser without notice?

No.

A bona fide purchaser who acquires the property for value without notice generally takes free of the equitable servitude.

Q: What is a reciprocal negative easement (RNE)?

• Type of equitable servitude

• Allows restrictions on some lots in subdivision to be implied against other lots under common development plan

Q: When should you discuss a reciprocal negative easement?

Whenever:

• a subdivision exists,

• not every deed contains the restriction,

• and a lot owner seeks to enforce a common development scheme.

Q: What are the four elements required for a reciprocal negative easement? CCON

• Common grantor

• Common plan or scheme

• Other restricted lots

• Notice

Q: Why is a common grantor required for a reciprocal negative easement?

Because the restrictions must originate from a single developer or owner who established the common plan.

Under an implied reciprocal negative easement, what is a common plan or scheme?

A general development plan showing that similarly situated lots were intended to be subject to substantially similar restrictions.

Q: Why are "other restricted lots" important when discussing the elements of the doctrine of implied reciprocal negative easements?

Restrictions on neighboring lots help demonstrate that a uniform development scheme exists.

Q: What types of notice satisfy the notice requirement for a reciprocal negative easement? (Two types)

• Constructive notice, or

• Inquiry notice.

Q: Are reciprocal negative easements affirmative or negative?

Negative

They restrict land use rather than require affirmative action.

Q: In California, what additional requirement applies to reciprocal negative easements?

California follows the minority rule requiring a writing

Q: Compare real covenants and equitable servitudes. Remedy type? Horizontal privity required? Enforcement?

Real Covenant	Equitable Servitude

Remedy: Damages

Remedy: Injunction

Horizontal privity required (burden)

Generally no horizontal privity

Strict legal enforcement

Equitable enforcement

Q: Compare equitable servitudes and reciprocal negative easements. Where does it apply? How/when is it formed? Affirmative or negative?

Equitable Servitude	Reciprocal Negative Easement

Applies generally

Primarily applies in subdivisions

May be express or implied

Requires common development scheme

May involve affirmative or negative promises

Only negative restrictions

What remedy is associated with each doctrine?

• Real Covenant → ______

• Equitable Servitude → ______

• Reciprocal Negative Easement → ______

• Real Covenant → Damages

• Equitable Servitude → Injunction

• Reciprocal Negative Easement → Injunction

1: If every lot in a subdivision has a restriction except one, what doctrine should you immediately consider?

What about:

2: If the plaintiff wants the defendant to stop violating a subdivision restriction, what doctrine should you analyze?

1) A reciprocal negative easement.

2) An equitable servitude, (and if the facts involve a common subdivision plan with omitted deed restrictions, also analyze reciprocal negative easements)