Real Covenants, Equitable Servitudes, and Implied Reciprocal Schemes

Real covenants overlap with equitable servitudes and its related concept of implied reciprocal schemes, often causing a lot of confusion for bar exam takers.

We created the tables below to help clarify rules around these concepts.

REAL COVENANTS

Definition: Real covenants are written promises that impose restrictions on the use of land and run with the land.

Common law requirements for real covenants:

Burdened LandBenefitted Land
Writing
– Between original parties
Writing
– Between original parties
Intent 
– To bind successors 
Intent 
– To benefit successors 
Touch & Concern
– Burden the land
– Restrict use or enjoyment of land
Touch & Concern
– Benefit the land
– Increase use or enjoyment of land
Vertical privity
– Relationship between the previous and current owners
Vertical privity
– Relationship between the previous and current owners
Horizontal privity
– Relationship between the original parties of the burdened and benefited land
Notice
– Actual, inquiry, or record (constructive)
Remedy: Legal DamagesRemedy: Legal Damages

Modernly, real covenants have fewer requirements.

  • Burdened Land: Writing, Intent and Notice only.
    • Touch & Concern, and Privity (Horizontal and Vertical) are no longer required.
  • Benefited Land: Writing and Intent only.
    • Touch & Concern, and Privity are no longer required.

EQUITABLE SERVITUDE

Definition: Equitable servitudes are restrictions on how land may be used. Servitudes run with the land. Equitable servitudes were developed in the courts of equity. Remedies for breach are injunctions only.-

IMPLIED RECIPROCAL SERVITUDE / SCHEME

Definition: A common plan or development that creates an implied reciprocal servitude or scheme among multiple lots where each lot is bound by the restrictions and can enforce them against others, even if the restrictions are not stated in every deed.

Equitable ServitudeImplied Reciprocal Scheme
Writing requiredNo Writing Required
– SOF does not apply
Intent to bind successors Intent to bind/benefit successors
(original owner’s common plan)
Touch & Concern Land
– Benefit dominant land
– Burden servient land
Touch & Concern Land
– oral words
– evidence, or
– recorded notice
Noticed RequiredNotice Required
Privity Not RequiredPrivity Not equired

Remedy: Injunction (Equity)

Remedy: Injunction (Equity)

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