Property--Implied Reciprocal Negative Easements Forum

[zomginternets]

This is for IRNE in a subdivision.

Assume a common grantor, and assume that lots (i.e. portions of what the common grantor owns) are sold one after the other (i.e. Lot 1 is sold before Lot 2, Lot 2 is sold before Lot 3, etc.)

Assume IRNE is contained in the deed of Lots 2 & 3, but NOT in the deed of Lots 4 & 5.

I understand why the burden of the IRNE runs from Lot 3 to all subsequently sold lots (i.e. 4 & 5), but I don't understand why the benefit runs to subsequently sold lots (i.e. the owner of Lot 3 owns the benefit of the the IRNE, so I don't see how that can run to the owners of Lot 4 or 5). Could someone explain?

[luckyduck]

I'm not 100% sure I'm clear on this but I'll give it a try.

Only 4 of the elements are required for the benefit to run with successors:
1. Compliance with SOF
2. Intent to bind successors
3. Touch and concern the land
4. notice

If it's not in the deed I'm not sure how it'd meet the Statute of frauds though. I do have a case (Tulk v Molaxhy) which the court found a equitable servitude (similar to a negative easement) without the S.O.F. being met because otherwise it would be unjust enrichment.

[NVResident]

My understanding of the issue is as follows;

In finding an IRNE in the situation you described, the court is essentially finding that the original subdivider (i.e. developer) intended to create a common interest community and bind all purchasers equally. It would be illogical to apply the only the burden to Lots 4 and 5 without also affording them the same benefit. Lets say the IRNE was to prevent the addition of a second story. If both the benefit and burden of the IRNE did not attach to subsequent lots, then the owner of Lot 4 could be prevented from adding a second story to his house while being unable to enjoin the owner of Lot 1 from doing the same. This would then create an inequitable situation as to the position of lot owners within the subdivision just as egregious as the inequity that the court is trying to remedy in finding an IRNE to exist in the first place.

[kalvano]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

[pleasetryagain]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

Credited.

[quiver]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

+ scheme was in place before property in question was sold

[zomginternets]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

I see. So vertical privity of estate is not necessary for the benefit to run? Or is the court just dispensing with the vertical privity and SOF requirements to reach an equitable result?

[quiver]

I see. So vertical privity of estate is not necessary for the benefit to run? Or is the court just dispensing with the vertical privity and SOF requirements to reach an equitable result?

As I understand it: vertical and horizontal privity are only relevant to real covenants. IRNE are only for equitable servitudes and therefore vertical and horizontal privity are irrelevant. Not sure how the SOF fits in; doesn't seem to be an issue in any of the cases/discussions we had.

[keg411]

I see. So vertical privity of estate is not necessary for the benefit to run? Or is the court just dispensing with the vertical privity and SOF requirements to reach an equitable result?

As I understand it: vertical and horizontal privity are only relevant to real covenants. IRNE are only for equitable servitudes and therefore vertical and horizontal privity are irrelevant. Not sure how the SOF fits in; doesn't seem to be an issue in any of the cases/discussions we had.

There isn't a true SOF requirement for equitable servitudes; though there has to be some writing somewhere (i.e. common scheme/plan, in some of the deeds, etc.).

[AndreeaP]

When the owner sells lots 2 and 3 with the negative easements, he is also bound by the easements on the land the owner retains. Lots 4 and 5 are part of the retained land. When he then sells them, they are burdened with the negative easements.

[kalvano]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

I see. So vertical privity of estate is not necessary for the benefit to run? Or is the court just dispensing with the vertical privity and SOF requirements to reach an equitable result?

The court is implying a covenant which should have been there but was left out for some reason. Privity is implied because, if the covenant had been in there like it was supposed to, it would run with the land and thus subject future owners to it.

[luckyduck]

We were specifically told that horizontal and vertical privity were not required for the benefit to run. But are required for the burden to run. No need to imply privity for the benefit, according to our professor.

[kalvano]

We were specifically told that horizontal and vertical privity were not required for the benefit to run. But are required for the burden to run. No need to imply privity for the benefit, according to our professor.

I think it depends on what approach your professor takes. Our like all the little rules, plus the modern or 3rd RS rules.

I believe the 3rd RS basically eliminated privity requirements, so your professor may simply go off that alone.

[zomginternets]

The court is implying a covenant which should have been there but was left out for some reason. Privity is implied because, if the covenant had been in there like it was supposed to, it would run with the land and thus subject future owners to it.

When you say "privity is implied", it seems like you are saying there isn't really any strict privity, but the court will hold that there is so that it can reach the result it wants.

I mean I understand the theory that both the burden & the benefit will be implied in Lots that don't have the covenant in their deeds, it just seems that a mechanical application of the rules on equitable servitudes does not get you there. I know a lot of courts will dispense with--or imply the satisfaction of--rules that hinder the result they want in a particular case, so my question is, is it worth mentally struggling with whether the strict application of "vertical privity" will allow this result, or if I should just accept the fact the burden & benefit exist in Lots without the covenant and not really worry too much about the whole vertical privity thing?

I think it depends on what approach your professor takes. Our like all the little rules, plus the modern or 3rd RS rules.

I believe the 3rd RS basically eliminated privity requirements, so your professor may simply go off that alone.

My prof said that vertical privity was required for both benefit and burden, but he thinks it is a far broader concept than with real covenants. He also acknowledged authority saying vertical privity wasn't needed.


If it isn't yet clear, I absolutely despise property.

[mbusch22]

IRNE only applies in cases where there is a common scheme, such as housing developments, where the developer accidentally left out an express covenant. The court then implies such a covenant for all the lots.

Everyone can enforce against everyone else because every lot is both benefited AND burdened.

IRNE requires

1) A common scheme or plan
2) Intent for there to be a covenant (a common scheme / plan will show intent)
3) Notice (all houses following a uniform scheme is notice)

I see. So vertical privity of estate is not necessary for the benefit to run? Or is the court just dispensing with the vertical privity and SOF requirements to reach an equitable result?

The court is implying a covenant which should have been there but was left out for some reason. Privity is implied because, if the covenant had been in there like it was supposed to, it would run with the land and thus subject future owners to it.

IRNEs are more akin to equitable servitudes, not covenants (good for injunction, not damages) so I don't think theres any need to be thinking "privity is implied", because privity shouldn't even be a concern. At least thats what I got from her. [kalvano & my prof]

Oh yeah i think you still have to make sure it touches and concerns. Likely a non-issue, but still.

[BeenDidThat]

The court is implying a covenant which should have been there but was left out for some reason. Privity is implied because, if the covenant had been in there like it was supposed to, it would run with the land and thus subject future owners to it.

When you say "privity is implied", it seems like you are saying there isn't really any strict privity, but the court will hold that there is so that it can reach the result it wants.

I mean I understand the theory that both the burden & the benefit will be implied in Lots that don't have the covenant in their deeds, it just seems that a mechanical application of the rules on equitable servitudes does not get you there. I know a lot of courts will dispense with--or imply the satisfaction of--rules that hinder the result they want in a particular case, so my question is, is it worth mentally struggling with whether the strict application of "vertical privity" will allow this result, or if I should just accept the fact the burden & benefit exist in Lots without the covenant and not really worry too much about the whole vertical privity thing?

I think it depends on what approach your professor takes. Our like all the little rules, plus the modern or 3rd RS rules.

I believe the 3rd RS basically eliminated privity requirements, so your professor may simply go off that alone.

My prof said that vertical privity was required for both benefit and burden, but he thinks it is a far broader concept than with real covenants. He also acknowledged authority saying vertical privity wasn't needed.


If it isn't yet clear, I absolutely despise property.

An extremely relaxed form of vertical privity is required. The subdivided properties all had to have once been an undivided whole. At least that was my understanding last semester when I took property.

[kalvano]

IRNEs are more akin to equitable servitudes, not covenants (good for injunction, not damages) so I don't think theres any need to be thinking "privity is implied", because privity shouldn't even be a concern. At least thats what I got from her. [kalvano & my prof]

Oh yeah i think you still have to make sure it touches and concerns. Likely a non-issue, but still.

She called them IRNE, but I think the more accurate term is "implied equitable servitude".

I believe that for the benefit or burden to run, under common law (not 3rd RS), there has to be vertical privity. It has largely been eliminated in modern law, but Forrester is insane.

[keg411]

IRNEs are more akin to equitable servitudes, not covenants (good for injunction, not damages) so I don't think theres any need to be thinking "privity is implied", because privity shouldn't even be a concern. At least thats what I got from her. [kalvano & my prof]

Oh yeah i think you still have to make sure it touches and concerns. Likely a non-issue, but still.

She called them IRNE, but I think the more accurate term is "implied equitable servitude".

I believe that for the benefit or burden to run, under common law (not 3rd RS), there has to be vertical privity. It has largely been eliminated in modern law, but Forrester is insane.

Privity only applies to Real Covenants (Horizontal and Vertical for Burden; Vertical for Benefit). Implied reciprocal negative covenants/easements/whatever are really just equitable servitudes and all you need is some type of writing (usually a general plan at the time of the subdivision), "touch and concern" and some kind of notice (which can be as little as inquiry notice where you look at all of the property around you and see the uses).

However, we didn't do 3rd RST (since it pretty much just eliminates privity requirements altogether.