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7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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Equitable Servitudes
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Topics Covered
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Which is easier enforcing a
promise as a real covenant or as an
equitable servitude?
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It is generally easier to enforce a
promise as an equitable servitude
than as a real covenant because
horizontal and vertical privity are
not required.
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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What is the remedy for violating an
equitable servitude?
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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The usual remedy for violation of
an equitable servitude is injunctive
relief, which often provides more
effective relief than compensatory
damages.
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What is an equitable servitude?
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An equitable servitude is a promise
concerning the use of land that (1)
benefits and burdens the original
parties and their successors and
(2) is enforceable in equity.
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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What is the difference between the
equitable servitude and the real
covenant?
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First, the standard for enforcing a promise as an equitableservitude is easier to meet than the parallel standard for a
real covenant
Second, a broader array of defenses applies to the equitable
servitude
Third, the traditional remedy for violation of an
equitable servitude is an injunction, not damages
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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What are the requirements for a
burden to run when dealing with an
equitable servitude?
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(1) the promise must be in writing or implied from a"common plan";
(2) the original parties must intend to bind successors;(3) the promise must "touch and concern" land; and(4) the successor must have notice of the promise.10
Neither horizontal privity nor vertical privity is required.
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What is the common plan or
scheme doctrine?
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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where a developer manifests a
"common plan" to impose uniform
restrictions on a subdivision, most
courts will find implied equitableservitudes even without a writing.
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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Does a devisee, heir, or other donee
qualify for protection as a bona fide
purchaser under the American Rule?
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A devisee, heir, or other donee cannot
qualify for protection as a bona fide
purchaser; under the American rule, a
donee is bound by a prior promise evenwithout notice.
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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When dealing with equitable servitude,
what is needed for the benefit to run?
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(1) the promise must be in writing or implied froma "common plan"
(2) the original parties must intend to benefitsuccessors
(3) the promise must "touch and concern" land
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When do courts agree that an
equitable servitude will be implied
in equity?
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If a developer manifests a common plan or common scheme toimpose uniform restrictions on a subdivision, most courts
conclude that an equitable servitude will be implied in equity.23
The common plan or scheme is viewed as an implied promise by
the developer to impose the same restrictions on all the retained
lots. Under this approach, every lot in the subdivision is bothburdened and benefited by the restriction. No lot owner may
violate the restriction; and any lot owner can enforce the
restriction against another.
7/29/2019 Understanding Property Equitable Servitudes Flash Cards
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What are the defenses to an
equitable servitude?
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(1) anti-discrimination protections(2) changed conditions(3) release,(4) abandonment,(5) merger, and(6) eminent domain
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What is the most common defense usedfor enforcement of a promise as an
equitable servitude?
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The most commonly-asserted defenseto enforcement of a promise as an
equitable servitude is changed
conditions.
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What is Acquiescence?
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Another defense, The plaintiff whoignores violations of a promise by some
owners-but
seeks to enforce the same promiseagainst the defendant will lose due to
acquiescence.
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What is estoppel?
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If the plaintiff manifests an intentionnot to enforce a land use promise and
the-defendant reasonably relies on this
conduct to his or her detriment, thedefense of estoppel is available.
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What is laches?
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The defense of laches arises whenthe plaintiffs unreasonable delay in
enforcing a promise causes
substantial prejudice to the
defendant.
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What do courts consider whendeciding on whether the plaintiff
will receive and injunction or
another equitable relief?
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As a general rule, courts traditionallyconsider the relative hardship to the
parties in deciding whether the
successful plaintiff will receive aninjunction or other equitable relief.
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What is the doctrine of unclean hands?
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The doctrine of unclean hands preventsa plaintiff who has violated a promise
from seeking to enforce it in equity
against another party.
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What are the remedies for breach ofequitable servitudes?
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The standard remedy for breach of anequitable servitude is an injunction.
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Under the restatement, what is neededto create an equitable servitude?
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1. The parties intend to create a servitude2. The servitude complies with the statute of
frauds
3. The servitude is not illegal, unconstitutional,or violative of public policy.
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Under the restatement what are theremedies of a equitable servitude?
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Under the Restatement, a servitude maybe enforced by any legal or equitable
remedy, including compensatory
damages, punitive damages,injunctions, restitution, imposition of
liens, or declaratory relief.