1. Real Covenants
1.1. Essentially Promises to Land
1.1.1. Specifically relates to the promise enforcement by damages.
1.2. Elements
1.2.1. Intent to bind Successors
1.2.1.1. Parties must intend the covenant burden and or bind subsequent owners rather than it mreely be a personal agreement b/w the parties
1.2.1.1.1. Parties may stipulate the promisor agrees for himself, heirs and assigns to be bound by the covenant
1.2.1.1.2. Common straightforward statements may suffice to show intent
1.2.1.2. Generally included to in the deed.
1.2.2. Touch and Concern land
1.2.2.1. Must touch and concern the burdened property
1.2.2.1.1. Previously was the actual physical touching, but is now would a reasonable person upon reflection and hindsight have intended the covenant to run with the land.
1.2.2.1.2. Burdens that touch and concern
1.2.2.1.3. Legal relations test
1.2.3. Privity of Estate
1.2.3.1. Horizontal Privity
1.2.3.1.1. Horizontal privity is required when the party with the benefit is pursuing enforcement against a new party with the burden
1.2.3.1.2. Horizontal privity is not required when enforcing between the original parties to the covenant, nor a successive benefiting party seeks to enforce against the original burdened party.
1.2.3.1.3. Defined: the necessary relationship between the original parties to the agreement for the covenant to run with the land
1.2.3.2. Vertical Privity
1.2.3.2.1. Always requried to enforce the covenant against or by a new party.
1.2.3.2.2. Defined: The relationship of an original promissor/promisee to the contract & those subsequent owners tracing their interest of some type.
1.2.3.3. Key terms
1.2.3.3.1. Original Promissee
1.2.3.3.2. Original Promisor
1.2.3.3.3. Subsequent Owner
1.2.4. In a writing to meet SOF
2. Equitable Servitudes
2.1. Promise to land, but one that is sought for the injunction remedy.
2.2. Elements
2.2.1. Intent to bind successors
2.2.1.1. Parties must intend the covenant burden and or bind subsequent owners rather than it mreely be a personal agreement b/w the parties
2.2.1.1.1. Parties may stipulate the promisor agrees for himself, heirs and assigns to be bound by the covenant
2.2.1.1.2. Common straightforward statements may suffice to show intent
2.2.1.2. Generally included to in the deed.
2.2.2. Touch and concern land
2.2.2.1. Must touch and concern the burdened property
2.2.2.1.1. Previously was the actual physical touching, but is now would a reasonable person upon reflection and hindsight have intended the covenant to run with the land.
2.2.2.1.2. Burdens that touch and concern
2.2.2.1.3. Legal relations test
2.2.3. Notice
2.2.3.1. Should be bound by covenant for at least injunctive relief if the original parties intended the burden to run, covenant touches and concerns the land and the person to be bound knows about the covenant during purchase
2.2.3.1.1. Actual, constructive of inquiry
2.2.3.1.2. Applies only to burden.
2.2.4. in a writing to meet SOF
3. Covenants Generally
3.1. To enforce a covenant, must determine which component (benefit/burden) is concerned and which party is seeking to enforce .
3.1.1. For a covenant to run with the land
3.1.1.1. Must be written to satisfy the statute of frauds
3.1.1.2. Intent of the parties for the covenant to run on the land
3.1.1.3. the covenant needs to touch and concern the land
3.1.1.4. Either notice of the covenant for the burdened party OR privity of estate.
3.1.2. Enforcement b/w original parties is contract law, but successive parties is the concern.
3.2. Two components to every covenant
3.2.1. Benefit
3.2.2. Burden
3.3. Two types of servitudes for covenants
3.3.1. Affirmative covenants
3.3.1.1. Require the land owner to do something to benefit another property
3.3.1.1.1. Ex. Maintain fence, Pay assoc. fees
3.3.2. Negative Covenants
3.3.2.1. Restrict landowner's use of land to benefit another property.
3.3.2.1.1. Traditionally, only 4 types were enforceable: Light, Air, Support, Steam Flow