Tuesday, April 22, 2008

Equitable Servitudes - Creation and Enforcement

An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will will enforce against the assignees of the burdened land who have notice of the covenant.

The remedy: injunction against violation of the covenant.

Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. Exception: negative equitable servitudes may be implied.

Implied servitudes

Equitable servitudes or negative covenants may be implied where a developer divides land into parcels and some lots contain negative covenants and some do not.

  1. Common scheme (may be evidenced by recorded plat, general pattern of prior restrictions or by oral representations (to early buyers that all lots will be bound)
  2. notice of the covenants:
    • actual notice - direct knowledge of covenants in prior deeds
    • inquiry notice - neighborhood appears to conform to common restrictions
    • record notice - if prior deeds are in grantee's chain of title, he has constructive notice of content

An equitable servitude in a deed is only enforceable where a party can establish:
1) intent for the restriction to be enforceable by subsequent grantees;
2) that the subsequent grantee had notice of the servitude; and
3) the restriction touches and concerns the land.

Benefit runs with land if original parties so intended.

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