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 Land | Benefitted 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 Damages | Remedy: 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 Servitude | Implied Reciprocal Scheme |
| Writing required | No 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 Required | Notice Required |
| Privity Not Required | Privity Not equired |
Remedy: Injunction (Equity) | Remedy: Injunction (Equity) |
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