Equitable Servitudes

Topics Covered

Which is easier enforcing a promise as a real covenant or as an equitable servitude?

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.

What is the remedy for violating an equitable servitude?

The usual remedy for violation of an equitable servitude is injunctive relief, which often provides more effective relief than compensatory damages.

What is an equitable servitude?

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.

What is the difference between the equitable servitude and the real covenant?

First, the standard for enforcing a promise as an equitable servitude 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

What are the requirements for a burden to run when dealing with an equitable servitude?

(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.

What is the common plan or scheme doctrine?

where a developer manifests a "common plan" to impose uniform restrictions on a subdivision, most courts will find implied equitable servitudes even without a writing.

Does a devisee, heir, or other donee qualify for protection as a bona fide purchaser under the American Rule?

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 even without notice.

When dealing with equitable servitude, what is needed for the benefit to run?

(1) the promise must be in writing or implied from a "common plan" (2) the original parties must intend to benefit successors (3) the promise must "touch and concern" land

When do courts agree that an equitable servitude will be implied in equity?

If a developer manifests a common plan or common scheme to impose 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 both burdened and benefited by the restriction. No lot owner may violate the restriction; and any lot owner can enforce the restriction against another.

What are the defenses to an equitable servitude?

(1) (2) (3) (4) (5) (6)

anti-discrimination protections changed conditions release, abandonment, merger, and eminent domain

What is the most common defense used for enforcement of a promise as an equitable servitude?

The most commonly-asserted defense to enforcement of a promise as an equitable servitude is changed conditions.

What is Acquiescence?

Another defense, The plaintiff who ignores violations of a promise by some owners-but seeks to enforce the same promise against the defendant will lose due to acquiescence.

What is estoppel?

If the plaintiff manifests an intention not to enforce a land use promise and the-defendant reasonably relies on this conduct to his or her detriment, the defense of estoppel is available.

What is laches?

The defense of laches arises when the plaintiffs unreasonable delay in enforcing a promise causes substantial prejudice to the defendant.

What do courts consider when deciding on whether the plaintiff will receive and injunction or another equitable relief?

As a general rule, courts traditionally consider the relative hardship to the parties in deciding whether the successful plaintiff will receive an injunction or other equitable relief.

What is the doctrine of unclean hands?

The doctrine of unclean hands prevents a plaintiff who has violated a promise from seeking to enforce it in equity against another party.

What are the remedies for breach of equitable servitudes?

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

Under the restatement, what is needed to create an equitable servitude?

1. The parties intend to create a servitude 2. The servitude complies with the statute of frauds 3. The servitude is not illegal, unconstitutional, or violative of public policy.

Under the restatement what are the remedies of a equitable servitude?

Under the Restatement, a servitude may be enforced by any legal or equitable remedy, including compensatory damages, punitive damages, injunctions, restitution, imposition of liens, or declaratory relief.