Tag: Implied Reciprocal Schemes

  • 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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