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I'm struggling with touch and concern, privity etc. for covenants and servitudes. Does anyone have a good breakdown of the two - differences, what you need to prove one, who can assert the claim, what terminates one?

Thank you!

Both are non-possessory interests in land.

Covenants provide a remedy in law (damages) while equitable servitudes are promises that equity will enforce (by providing an equity in the form of an injunction).

Main difference: covenants require privity. It's a little easier to enforce an E.S. because no privity is required.

E.S.: need writing, intent, and notice.

Covenant: need all the above plus horizontal privity AND vertical privity to enforce a burden, and only vertical privity to enforce a benefit.

JJDancer wrote:I'm struggling with touch and concern, privity etc. for covenants and servitudes. Does anyone have a good breakdown of the two - differences, what you need to prove one, who can assert the claim, what terminates one?

Thank you!

Covenants: You usually get money damages type stuff, so this is going to be more specific. Need writing.

Burden: Touch and concern, intent, horizontal privity, vertical privity, notice (under your recording acts).

Benefit: Vertical privity, touch and concern, intent.


Servitudes: This is equity. All about what's fair. You're going to get some kind of an injunction probably. Look to the equitable defenses- unclean hands, laches, estoppel, drastic change in the entire neighborhood, etc.). Need writing, unless there's notice because of a common scheme that there is a negative ES.

Burden: touch and concern, intent, notice.

Benefit: Touch and concern and intent.

Both need to touch and concern the land to be enforceable/run with the land. If it makes the land more valuable or useful, as a general matter it touches and concerns the land.

Very helpful thread. Does anyone have an easy definition for horizontal privity? I just have that it's some relationship between the parties beyond the covenant itself, but what does that even mean?

Law-So-Hard wrote:Both are non-possessory interests in land.

Covenants provide a remedy in law (damages) while equitable servitudes are promises that equity will enforce (by providing an equity in the form of an injunction).

Main difference: covenants require privity. It's a little easier to enforce an E.S. because no privity is required.

E.S.: need writing, intent, and notice.

Covenant: need all the above plus horizontal privity AND vertical privity to enforce a burden, and only vertical privity to enforce a benefit.

Thanks, so what would an analysis for a covenant look like?
1) is there a written covenant?
2) an intention that the covenant run with the land?
3) does covenant touch and concern the land?
4) you see if the burden runs - both horizontal (original parties) and vertical privity
and then if the benefit runs - vert priv only?

beachbum wrote:Very helpful thread. Does anyone have an easy definition for horizontal privity? I just have that it's some relationship between the parties beyond the covenant itself, but what does that even mean?

Look for grantor-grantee/landlord-tenant relationship between the original parties to the covenant.

alicrimson wrote:

JJDancer wrote:I'm struggling with touch and concern, privity etc. for covenants and servitudes. Does anyone have a good breakdown of the two - differences, what you need to prove one, who can assert the claim, what terminates one?

Thank you!

Covenants: You usually get money damages type stuff, so this is going to be more specific. Need writing.

Burden: Touch and concern, intent, horizontal privity, vertical privity, notice (under your recording acts).

Benefit: Vertical privity, touch and concern, intent.


Servitudes: This is equity. All about what's fair. You're going to get some kind of an injunction probably. Look to the equitable defenses- unclean hands, laches, estoppel, drastic change in the entire neighborhood, etc.). Need writing, unless there's notice because of a common scheme that there is a negative ES.

Burden: touch and concern, intent, notice.

Benefit: Touch and concern and intent.

So the person under "vertical privity" needs to have actual, inquiry or constructive (recording act) notice both for ES and C?

beachbum wrote:Very helpful thread. Does anyone have an easy definition for horizontal privity? I just have that it's some relationship between the parties beyond the covenant itself, but what does that even mean?

That's pretty much it. It has to be between the orignal parties. So, it could be like a grantor-grantee relationship, mortgagee-mortgagor, or ll-tenant situation. You just need some thing where the original parties were connected.

JJDancer wrote:

alicrimson wrote:

JJDancer wrote:I'm struggling with touch and concern, privity etc. for covenants and servitudes. Does anyone have a good breakdown of the two - differences, what you need to prove one, who can assert the claim, what terminates one?

Thank you!

Covenants: You usually get money damages type stuff, so this is going to be more specific. Need writing.

Burden: Touch and concern, intent, horizontal privity, vertical privity, notice (under your recording acts).

Benefit: Vertical privity, touch and concern, intent.


Servitudes: This is equity. All about what's fair. You're going to get some kind of an injunction probably. Look to the equitable defenses- unclean hands, laches, estoppel, drastic change in the entire neighborhood, etc.). Need writing, unless there's notice because of a common scheme that there is a negative ES.

Burden: touch and concern, intent, notice.

Benefit: Touch and concern and intent.

So the person under "vertical privity" needs to have actual, inquiry or constructive (recording act) notice both for ES and C?

With vertical privity, the recording statutes control for covenants. This isn't the case for equitable servitudes. Keep in mind, this is equity.

Edit: places where you're going to see this come up with an ES is in a common scheme or development where some of the deeds have the a restriction and others don't.

alicrimson wrote:

JJDancer wrote:

alicrimson wrote:

JJDancer wrote:I'm struggling with touch and concern, privity etc. for covenants and servitudes. Does anyone have a good breakdown of the two - differences, what you need to prove one, who can assert the claim, what terminates one?

Thank you!

Covenants: You usually get money damages type stuff, so this is going to be more specific. Need writing.

Burden: Touch and concern, intent, horizontal privity, vertical privity, notice (under your recording acts).

Benefit: Vertical privity, touch and concern, intent.


Servitudes: This is equity. All about what's fair. You're going to get some kind of an injunction probably. Look to the equitable defenses- unclean hands, laches, estoppel, drastic change in the entire neighborhood, etc.). Need writing, unless there's notice because of a common scheme that there is a negative ES.

Burden: touch and concern, intent, notice.

Benefit: Touch and concern and intent.

So the person under "vertical privity" needs to have actual, inquiry or constructive (recording act) notice both for ES and C?

With vertical privity, the recording statutes control for covenants. This isn't the case for equitable servitudes. Keep in mind, this is equity.

Edit: places where you're going to see this come up with an ES is in a common scheme or development where some of the deeds have the a restriction and others don't.

Hey Ali, maybe I am confused, but I thought actual/ constructive/ inquiry notice was good both for an ES and a RC? Or did I completely miss what you meant?

MoneyMay wrote:
Hey Ali, maybe I am confused, but I thought actual/ constructive/ inquiry notice was good both for an ES and a RC? Or did I completely miss what you meant?

I just checked my cmr. It says recording statutes controls for convenants. I'm trying to think of situations where this occurs. In most states, the recording statute is going to be notice or race-notice. There, you would be able to use actual/constructive/inquiry. The problem is where a statute is pure race, because recording is the only thing that matters. So, I'm assuming (could be wrong) that this sort of distinction would be important in a jx like that. ES says just plain notice, which makes sense, because the courts are trying to do what's fair.

Again, could be totally off. I just memorized the elements that way based on CMR and lecture notes, so I was trying to figure out a way that could be tested. Haven't seen questions that test that particular aspect of it before.

alicrimson wrote:

MoneyMay wrote:
Hey Ali, maybe I am confused, but I thought actual/ constructive/ inquiry notice was good both for an ES and a RC? Or did I completely miss what you meant?

I just checked my cmr. It says recording statutes controls for convenants. I'm trying to think of situations where this occurs. In most states, the recording statute is going to be notice or race-notice. There, you would be able to use actual/constructive/inquiry. The problem is where a statute is pure race, because recording is the only thing that matters. So, I'm assuming (could be wrong) that this sort of distinction would be important in a jx like that. ES says just plain notice, which makes sense, because the courts are trying to do what's fair.

Again, could be totally off. I just memorized the elements that way based on CMR and lecture notes, so I was trying to figure out a way that could be tested. Haven't seen questions that test that particular aspect of it before.

Ohhhh ok I got you I wasn't following before!

Struggling with this still. Can someone please give me a scenario where the Burden of the covenant does not run and when the Burden does run?

Covenant:

Covenant is nonposessory interest in another’s land – obligates holder to do something/not do something related to land. Burden runs if 1) signed writing SOF, 2) intent to bind later owners, 3) horiz priv between original parties, 4) vert priv with succeeding parties 5) touch n concern the land, and 6) notice to burdened.
For benefit to run with land, need intent, writing, touch and concern, and vertical priv only.

- mentions "heirs succesors" = inent
- horiz = LL-t, grantor-tee, devisor-see, buyer-seller
- vert – non hostile later owner. Sale counts
- T&C: burden holder and benefit another in use n enjoyment of own land – increase value to one/decrease to another
- Notice: burdened party has notice (actual, inquiry – something on land suggests reasonable buyer would inquire further, or constructive by the recorded deed).
- even if not on YOUR deed, can be found by title search whether prior deed had covenant to apply to successors.

Benefit run:
I, writing, TC, vert priv: intend benefit run, benefitted parties non hostile

EQUITABLE SERVITUDE
Less strict than covenant, often if not met for covenant, can give this as equitable relief.
Burden run if intent, writing, TC + notice = get injunction (injunction can mean requiring a party to do something too)

Reciprocal implied from common scheme:
Implied from actions where developer of lot of plots with common scheme apparent from development, and on notice.
Advertisements mention the scheme like all homes have lake views/access or all homes protected by security company + record notice

jaydizzle wrote:Struggling with this still. Can someone please give me a scenario where the Burden of the covenant does not run and when the Burden does run?

Does run: Grantor grants a parcel to Neighbor, with an easement to use his land for a right-of-way. Grantor then sells his own parcel to Buyer and gives him a deed that mentions the easement. Buyer records. Buyer then sells to investor, but the deed does not mention the easement. Neighbor continues to use the easement. Investor then sues neighbor for ejectment and damages (remember, if you're only seeking an injunction construe it as an equitable servitude - WITN(es))

Here, the burden runs because WITHN is met:

Original promise (the easement) in Writing - check
Intent of the original parties that the burden would run - check
Touch and concern the land - check
Horizontal privity - grantor/grantee relationship between Grantor and Neighbor
Vertical privity - yes, between Investor and Grantor
Notice - with a search of the chain of title Investor could know about the easement

Remember that an easement appurtenant passes automatically with the dominant land, and automatically with the servient estate unless the purchaser is a BFP with no notice - which is hard to come up with a scenario when that would happen, since they'd likely be on actual or inquiry notice if someone had an easement.

Georgia Avenue wrote:

jaydizzle wrote:Struggling with this still. Can someone please give me a scenario where the Burden of the covenant does not run and when the Burden does run?

Does run: Grantor grants a parcel to Neighbor, with an easement to use his land for a right-of-way. Grantor then sells his own parcel to Buyer and gives him a deed that mentions the easement. Buyer records. Buyer then sells to investor, but the deed does not mention the easement. Neighbor continues to use the easement. Investor then sues neighbor for ejectment and damages (remember, if you're only seeking an injunction construe it as an equitable servitude - WITN(es))

Here, the burden runs because WITHN is met:

Original promise (the easement) in Writing - check
Intent of the original parties that the burden would run - check
Touch and concern the land - check
Horizontal privity - grantor/grantee relationship between Grantor and Neighbor
Vertical privity - yes, between Investor and Grantor
Notice - with a search of the chain of title Investor could know about the easement

Remember that an easement appurtenant passes automatically with the dominant land, and automatically with the servient estate unless the purchaser is a BFP with no notice - which is hard to come up with a scenario when that would happen, since they'd likely be on actual or inquiry notice if someone had an easement.

Great! I was under the impression for some reason that the Investor and Buyer had to have the Vertical Privity. I have no idea why...

Georgia Avenue wrote:

jaydizzle wrote:Struggling with this still. Can someone please give me a scenario where the Burden of the covenant does not run and when the Burden does run?

Does run: Grantor grants a parcel to Neighbor, with an easement to use his land for a right-of-way. Grantor then sells his own parcel to Buyer and gives him a deed that mentions the easement. Buyer records. Buyer then sells to investor, but the deed does not mention the easement. Neighbor continues to use the easement. Investor then sues neighbor for ejectment and damages (remember, if you're only seeking an injunction construe it as an equitable servitude - WITN(es))

Here, the burden runs because WITHN is met:

Original promise (the easement) in Writing - check
Intent of the original parties that the burden would run - check
Touch and concern the land - check
Horizontal privity - grantor/grantee relationship between Grantor and Neighbor
Vertical privity - yes, between Investor and Grantor
Notice - with a search of the chain of title Investor could know about the easement

Remember that an easement appurtenant passes automatically with the dominant land, and automatically with the servient estate unless the purchaser is a BFP with no notice - which is hard to come up with a scenario when that would happen, since they'd likely be on actual or inquiry notice if someone had an easement.

The above is what I am confused about if someone could please clarify. How do I know the difference between an easement appurtenant and a covenant? f something is an easement appurtenant, then my test for it passing is just that the person receiving the dominant land gets it, right? So if I have an appurtenant easement letting me (A) walk across B's land to use his water supply, then does it pass automatically from A to A2 (the buyer of A's property)? What if it is in gross and A can go fishing in B's pond? That requires a commercial use, correct?

What separates these easements from a covenant? I realize the distinction is probably pretty simple, but I'm just missing it.

TLSNYC wrote:The above is what I am confused about if someone could please clarify. How do I know the difference between an easement appurtenant and a covenant? f something is an easement appurtenant, then my test for it passing is just that the person receiving the dominant land gets it, right? So if I have an appurtenant easement letting me (A) walk across B's land to use his water supply, then does it pass automatically from A to A2 (the buyer of A's property)? What if it is in gross and A can go fishing in B's pond? That requires a commercial use, correct?

What separates these easements from a covenant? I realize the distinction is probably pretty simple, but I'm just missing it.

You can run into all sorts of covenants on the bar separate from easements. Covenants to repair between a landlord and tenant. Covenants to maintain a certain object on the property. You get the point. Just apply the same test and you'll be good.

Right, easements in gross only pass automatically for commercial uses.