Equitable servitude

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Property law

Part of the common law series

Acquisition

Gift · Adverse possession · Deed Lost, mislaid, and abandoned property Treasure trove Alienation · Bailment · License

Estates in land

Allodial title · Fee simple · Fee tail Life estate · Defeasible estate Future interest · Concurrent estate Leasehold estate · Condominiums

Conveyancing

Bona fide purchaser Torrens title · Strata title Estoppel by deed · Quitclaim deed Mortgage · Equitable conversion Action to quiet title

Future use control

Restraint on alienation Rule against perpetuities Rule in Shelley's Case Doctrine of worthier title

Nonpossessory interest

Easement · Profit Covenant running with the land Equitable servitude

Related topics

Fixtures · Waste · Partition Riparian water rights Lateral and subjacent support Assignment · Nemo dat

Other common law areas

Contract law · Tort law Wills, trusts and estates Criminal law · Evidence

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An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England, when the promise regarding land use is a negative one i.e. one forbidding certain use, the promise is called equitable servitude. However, in the U.S. both negative and affirmative equitable servitudes are recognized. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.

[edit] Creation

Equitable servitudes must be created by a writing, unless it is a negative equitable servitude which may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, including Massachusetts and California.

[edit] Requirement for burden to run

A successor of the promisor is bound if:

1. the original promise is in writing
2. the covenanting parties intended that the servitude be enforceable by and against assignees,
3. the successor of the promisor has actual, inquiry, or record notice of the servitude, and
4. the covenant touches and concerns the land.

[edit] Requirement for benefit to run

The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee's successors if the original parties so intended, and the servitude touches and concerns the benefited property.

[edit] Equitable defenses to enforcement

A court will not enforce an equitable servitude if:

• The person seeking enforcement is violating a similar restriction on his own land (unclean hands);
• The benefited party acquiesced in a violation of the servitude by a burdened party (acquiescence);
• The benefited party acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel);
• The benefited party fails to bring suit against the violator within a reasonable time (laches);
• The character of the neighborhood changes sufficiently, through changes in zoning or through non-enforcement of the equitable servitude in one part of the neighborhood (called the "Changed Conditions" doctrine).

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