Equitable Servitudes Question Forum

[sknight323]

Say you have two people who have land next to each other (A and B). They build a barrier and promise to maintain the fence through a writing. A (an original owner) sells to C, who fails to maintain the barrier. B wants to get either damages or an injunction.

There is no covenant enforceable at law because there is no horizontal privity between A and B. But what about an equitable servitude? Assume this touches and concerns the land, C had notice, and B intended for this burden to run. In an outline I have it says something about how this is not an equitable servitude because A has no interest in C's property. Is this correct? How would A have gained an interest in C's property? Does this just mean that B has to be the one who sues? Isn't that saying that vertical privity is required for equitable servitudes, then? It seems like the person who previously made this outline is just wrong.

[spacepenguin]

Say you have two people who have land next to each other (A and B). They build a barrier and promise to maintain the fence through a writing. A (an original owner) sells to C, who fails to maintain the barrier. B wants to get either damages or an injunction.

There is no covenant enforceable at law because there is no horizontal privity between A and B. But what about an equitable servitude? Assume this touches and concerns the land, C had notice, and B intended for this burden to run. In an outline I have it says something about how this is not an equitable servitude because A has no interest in C's property. Is this correct? How would A have gained an interest in C's property? Does this just mean that B has to be the one who sues? Isn't that saying that vertical privity is required for equitable servitudes, then? It seems like the person who previously made this outline is just wrong.

If you're looking at this from A's perspective, isn't his burden/benefit extinguished once he sells his land to C? I mean, he's not even part of the calculus anymore.

Edit: Just to clarify, you're absolutely right in that vertical privity isn't necessary for an equitable servitude. That argument, however, is only relevant in an enforcement action of B suing C. Otherwise, from my limit knowledge, that outline is wrong

[sknight323]

My bad, I think I screwed up my letters. Basically, A sells to C. B is still on his property. It is B that wants to get the injunction, so this would be an equitable servitude. B is trying to enforce the benefit of his land, so it's not really a question of whether there is a legal relationship. A would have no place to sue here once he sells the land, correct?

Kinda odd because a privity of estate analysis sort of comes into play during an equitable servitude question. You can't just be some random guy suing to enforce a burden on an equitable servitude, correct?

Thanks for the help.

[spacepenguin]

My bad, I think I screwed up my letters. Basically, A sells to C. B is still on his property. It is B that wants to get the injunction, so this would be an equitable servitude. B is trying to enforce the benefit of his land, so it's not really a question of whether there is a legal relationship. A would have no place to sue here once he sells the land, correct?

Kinda odd because a privity of estate analysis sort of comes into play during an equitable servitude question. You can't just be some random guy suing to enforce a burden on an equitable servitude, correct?

Thanks for the help.

That's pretty much it. Also, you CAN just be a "random guy" suing if you're an agent of the benefited parties (homeowner association), but I can't see how else.

[crossarmant]

Assuming that A is the one who is supposed to maintain the fence, he has the burden; B has the benefit. To run the burden of an equitable servitude you need [1] Intent (satisfied) [2] Touch & Concern (satisfied) [3] Notice (satisfied). There should be an equitable servitude here, but since there horizontal privity, it cannot be a real covenant.

However, privity does come into play with equitable servitudes when you're running the benefit, there must be [1] Intent, [2] Vertical Privity (maybe of a lesser quantum than the original estate: FSA -> LE), [3] Touch & Concern.

[sknight323]

Thanks guys.

[jarofsoup]

1 note:

Always always go through both of them for a problem. Where something is enforceable by sevitude it can also be by covenant and vice versa.