Equitable Servitudes

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swc65
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Equitable Servitudes

Postby swc65 » Sun May 08, 2011 9:54 pm

What is the difference between ES and real covenants other than ES do not require horizontal privity or writing?


Can you only use an ES claim to stop someone from doing something such as stopping them building a second story? Or can you use ES to enforce an affirmative burden?

random5483
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Re: Equitable Servitudes

Postby random5483 » Sun May 08, 2011 10:44 pm

The central difference was that ES does not require privity. Further, ES was a solution when bringing suits in courts of equity. Traditionally, that meant you could only get injunctive relief (equitable relief). On the other hand when you brought an action based on real covenants, your relief could include damages. Now, things have changed. We no longer have a division between courts of law and equity. The modern requirements vary.

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kalvano
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Re: Equitable Servitudes

Postby kalvano » Sun May 08, 2011 11:23 pm

Also, ES's had a notice requirement.

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swc65
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Re: Equitable Servitudes

Postby swc65 » Mon May 09, 2011 1:34 am

kalvano wrote:Also, ES's had a notice requirement.



yeah see this is weird because we were told that both have a notice requirement. One of sups says RCs dont (or at least fails to mention that it does).

random5483
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Re: Equitable Servitudes

Postby random5483 » Mon May 09, 2011 1:45 am

swc65 wrote:
kalvano wrote:Also, ES's had a notice requirement.



yeah see this is weird because we were told that both have a notice requirement. One of sups says RCs dont (or at least fails to mention that it does).


I learnt that both ES and RC have notice requirements; however, I did not rely on any supplements for property, so this was basically based off either professor or casebook.

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Charles Barkley
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Re: Equitable Servitudes

Postby Charles Barkley » Mon May 09, 2011 2:31 am

The remedy and lack of privities.

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swc65
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Re: Equitable Servitudes

Postby swc65 » Mon May 09, 2011 9:37 am

Charles Barkley wrote:The remedy and lack of privities.



Right, but can you use ES to enforce an affirmative burden?

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kalvano
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Re: Equitable Servitudes

Postby kalvano » Mon May 09, 2011 1:04 pm

swc65 wrote:
kalvano wrote:Also, ES's had a notice requirement.



yeah see this is weird because we were told that both have a notice requirement. One of sups says RCs dont (or at least fails to mention that it does).



No. Obviously, go with what your professor said, but the traditional requirements for a RC are:

Touches and concern
Intent
Privity - usually required horizontal privity
Writing

For RC, you could get damages only.

ES's arose because of a case brought in an English court of equity. It was to stop someone from screwing over someone else because of a lack of privity. The traditional elements for an ES are:

Touch and concern
Intent
Privity - usually required only vertical privity
Notice of the burden


These days, there is no real difference between the two, and the 3rd RS has combined them.


General rule of thumb - if your professor asks for damages, analyze under RC. If they ask about injunction or equitable relief, analyze under ES. If they just ask for legal option, do both.

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swc65
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Re: Equitable Servitudes

Postby swc65 » Mon May 09, 2011 2:49 pm

kalvano wrote:
swc65 wrote:
kalvano wrote:Also, ES's had a notice requirement.



yeah see this is weird because we were told that both have a notice requirement. One of sups says RCs dont (or at least fails to mention that it does).



No. Obviously, go with what your professor said, but the traditional requirements for a RC are:

Touches and concern
Intent
Privity - usually required horizontal privity
Writing

For RC, you could get damages only.

ES's arose because of a case brought in an English court of equity. It was to stop someone from screwing over someone else because of a lack of privity. The traditional elements for an ES are:

Touch and concern
Intent
Privity - usually required only vertical privity
Notice of the burden


These days, there is no real difference between the two, and the 3rd RS has combined them.


General rule of thumb - if your professor asks for damages, analyze under RC. If they ask about injunction or equitable relief, analyze under ES. If they just ask for legal option, do both.


Very helpful. Thanks




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