Easements, Covenants, and Equitable Servitudes

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
nodummy
Posts: 179
Joined: Fri Aug 28, 2009 4:20 pm

Easements, Covenants, and Equitable Servitudes

Postby nodummy » Mon Dec 05, 2011 1:16 pm

I can't keep these straight. What are the differences between these three things?

Can anyone provide examples and explanations of each of these?

youarereadingthis
Posts: 101
Joined: Thu Nov 18, 2010 1:57 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby youarereadingthis » Tue Dec 06, 2011 6:49 pm

These aren't distinct categories, and there is some overlap.

Real covenants require horizontal privity of estate between two parties. These are different than contracts because they touch and run with the land in vertical privity.

Equitable servitudes are like defective covenants and not enforceable in a court of law, only in courts of equity. Otherwise they are basically the same.

Easements are acquired via prescription, estoppel, express writing or sale, and/or implication for a necessary or preexisting use. But in content they can also be the same as covenants and equitable servitudes.

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby ph14 » Tue Dec 06, 2011 7:20 pm

nodummy wrote:I can't keep these straight. What are the differences between these three things?

Can anyone provide examples and explanations of each of these?


Basically, servitude is a broad general term that encompasses everything below:

Real Covenant = promise to do (affirmative) or not do something on your land (negative, synonymous with "restrictive covenant" and also "negative easement"; the 3rd restatement combines them all into 1 category I believe-- can't remember which one they used but I think it was restrictive covenant and just abolished the term negative easement)
Affirmative Easement = right to do something on someone else's land
Equitable Servitude = same as real covenants but different requirements to make them (no privity requirement);

Correct me if i'm wrong but when agreements are enforced as an equitable servitude you get an injunction, but real covenants you just get damages. May be totally off base here, just going off memory.

Renzo
Posts: 4265
Joined: Tue Dec 02, 2008 3:23 am

Re: Easements, Covenants, and Equitable Servitudes

Postby Renzo » Wed Dec 07, 2011 12:00 am

There isn't much distinction these days, but, at a theoretical level:

An easement is an interest in land that doesn't include possession; basically a right you hold in someone else's land, either to do something yourself or to keep them from doing something. That's why they originally limited to things that happened on land, like the right to walk across it, or to have water/air/light flow across it. This also explains why it was so difficult to enforce them at common law; you had to prove that you owned not just the land that might benefit from the easement, but the actual property right of the easement itself.

Originally, they were only enforceable in a court of law, for money damages. An equitable servitude arose when someone screwed up the hypertechnical requirements to create an easement, and thus couldn't enforce it in law; courts realized that it was harsh not to enforce it at all given how difficult the requirements were, so they would enforce it in equity (meaning you could get an injunction, but no damages). Now this distinction is irrelevant, since most people would prefer an injunction, and most of the privity rules for easements have been relaxed

A covenant is basically a contract between two people about how to use land, rather than an interest in the land itself. The contract runs with the land only because that's what the parties agreed it should do. This helps explain why courts are sometimes willing to enforce a covenant against someone who wasn't actually a party to it; it's essentially a quasi-contract/unjust enrichment scenario where a person's property has received the benefit of the bargain, and is now trying to disclaim any obligation.

adonai
Posts: 1033
Joined: Mon Apr 23, 2007 9:09 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby adonai » Wed Dec 07, 2011 12:19 am

Where in these and why is notice relevant? What types of situations would notice of the easement/servitude come up?

Thedude737
Posts: 29
Joined: Sat Jan 15, 2011 1:55 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby Thedude737 » Tue Dec 13, 2011 10:21 pm

adonai wrote:Where in these and why is notice relevant? What types of situations would notice of the easement/servitude come up?


Notice is relevant to give a subsequent buyer fair warning that he's going to purchase a piece of property with a real covenant attached to it. Real covenants almost always must be recorded which then gives the buyer notice (or SHOULD give the buyer notice b/c he should do a title search) that the property he is about to purchase is burdened or benefited in some way. Without any type of notice, it would be very unfair for a buyer to purchase property with a covenant he didn't know about.

OnlyRkNRollButILkeIt
Posts: 9
Joined: Fri Aug 26, 2011 10:23 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby OnlyRkNRollButILkeIt » Tue Dec 13, 2011 10:29 pm

youarereadingthis wrote:
Real covenants require horizontal privity of estate between two parties.



I would check on this. Horizontal privity is required for the burden of the covenant to run at law, I don't think it's necessary to create a covenant.

User avatar
superhands
Posts: 77
Joined: Sat Nov 28, 2009 8:12 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby superhands » Tue Dec 13, 2011 10:48 pm

OnlyRkNRollButILkeIt wrote:
youarereadingthis wrote:
Real covenants require horizontal privity of estate between two parties.



I would check on this. Horizontal privity is required for the burden of the covenant to run at law, I don't think it's necessary to create a covenant.


With respect to real covenants, the requisite privity depends on which end of the covenant you are seeking to enforce, the benefit or the burden. Also, the vertical privity requirements for the burden/benefit differ. For the benefit to run, no horizontal privity is necessary. You only need vertical privity. Vertical privity exists whenever a grantor makes a conveyance to the grantee. For the burden to run you will need horizontal and vertical privity. Vertical privity in this case only exists when the grantor conveys his full durational estate to the grantee.

Also, no privity is needed for an equitable servitude to run with the land. So if you are not able to enforce a real covenant due to lack of privity, you can enforce it as an equitable servitude and enjoin the breaching party.

dreakol
Posts: 572
Joined: Sat Nov 13, 2010 1:56 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby dreakol » Tue Dec 13, 2011 11:10 pm

lots of wrong information itt

User avatar
superhands
Posts: 77
Joined: Sat Nov 28, 2009 8:12 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby superhands » Wed Dec 14, 2011 12:36 am

dreakol wrote:lots of wrong information itt


And the correct information would be...

User avatar
AreJay711
Posts: 3406
Joined: Tue Jul 20, 2010 8:51 pm

Re: Easements, Covenants, and Equitable Servitudes

Postby AreJay711 » Wed Dec 14, 2011 12:44 am

:lol: /self




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: LawHammer, MSNbot Media and 6 guests