a

Real Property: Real Covenants & Equitable Servitudes [LEAP Preview]

in this lesson we're going to break down

real covenants and equitable servitudes

so step 1 write what is a covenant well

from this point forward through the rest

of the lecture right every time you hear

me use the word covenant you can in your

head just think a promise right a

covenant is simply a promise whether

we're dealing with Express covenants

implied covenants we're in contract law

were in real property for the most part

when we're talking about covenants we're

talking about promises right and we all

know what real property is right real

property is essentially just land so if

we combine the two right a real covenant

is just a promise concerning the use of

land or a not that bad but if we will

get our official definition we'll say

that a real covenant is a promise

concerning the use of land that benefits

and burdens the original parties to the

promise and also their successors rating

this part about successors is kind of

the key right a real covenant not only

benefits and burdens the original

parties right but it also passes to

their successors right and that's really

what the focus of this lesson is going

to be on how do we determine whether a

real covenant or an equitable servitude

runs with the land to successors right

but from the top we can distinguish

between real covenants and equitable

servitudes because you might hear me use

those interchangeably what's going on

here is that real covenants are

enforceable for monetary damages and

equitable servitudes are enforceable in

actions for equitable relief usually an

injunction so we'll see step one and our

analysis as always what is the plaintiff

seeking here is the plaintiff seeking

money damages or equitable relief if the

plaintiff is seeking monetary damages we

know it's a real covenant analysis if

the plaintiff is seeking equitable

relief like in injunction we know it's

equitable servitudes the good news is

big picture the analysis stays the same

right we just change what elements were

actually applying right but real

covenant at

servitude are both just a promise

concerning the use of land that benefits

and burdens the original parties to the

promise and also their successors the

only difference is what remedy the

plaintiff is seeking if the plaintiff is

seeking money damages we know it's real

covenants if the plaintiff is seeking

equitable relief like an injunction

right we know it's equitable servitudes

but the rest is going to stay the same

don't get tripped up by that right but

kind of the next thing then we have to

identify is okay what are we talking

about here with benefits and burdens

what is that right the benefit of the

Covenant or the benefit of the promise

is the ability to enforce the covenant

while the burden of the covenant is

being subject to or bound by it right so

probably the best way to see what this

kind of looks like it's just to look at

a classic fact pattern right we can look

at an example and as we go through the

example we can kind of define all of

these terms a little bit more alright so

imagine that a conveys Greenacre to be

pursuant to a deed that states the

following be his successors heirs and

assigns shall not construct any

structure on Greenacre that exceeds

fifteen feet in height after the aid of

B deed is recorded B conveys Greenacre

to C of course now C builds a 20-foot

house on green acre which would be a

direct violation of this promise that be

made to a right the question will

ultimately be can a recover damages or

seek an injunction from C for breach of

the covenant but let's start with the

basics right what is the covenant that's

involved here right we really covenant

it's just a promise

who is our promise or who is making the

promise well here B right is promising

to a look I'm gonna buy green acre and

I'm promising right by this covenant

right B his successors heirs and assigns

shall not construct any structure on

green acre that exceeds fifteen feet in

height so essentially the promise the

covenant is just from BJP is promising a

hey look I'm not going to build anything

that exceeds

15 feet on Greenacre okay that's easy

enough

who has the benefit of that promise and

who has the burden of that promise well

the benefit of the Covenant is the

ability to enforce the Covenant so here

who gets to enforce this promise a or b

well a gets to enforce the promise right

B is the one who is subject to it or

bound by B is the one who has to

actually refrain from building anything

over 15 feet on Greenacre if B builds

something over 15 feet on Greenacre a is

the one who gets to enforce that a can

sue right I can say hey look we had a

promise you told me you weren't gonna

build anything over 15 feet now you're

building something over 15 feet

I can enforce that promise in court

right seek monetary damages or maybe an

injunction but either way a has the

benefit of the ik of inant because he's

the one who gets to enforce it of course

B would then have the burden of the

Covenant because he is subject to it or

bound by it right he has to refrain from

building anything over 15 feet right B

is the one that is subject to it or

bound by it okay with those two pieces

of information we can do a lot to write

that's we're going to see step 1 and

step 2 of the analysis but let's move

past right we know that this isn't just

a and B we have this third party C

involved so how does C come into play

here right well remember it conveys

Greenacre to be pursuant to a deed where

we lay out this promise right where this

covenant is where this covenant is

contained right that agreement is

between a and B those are our original

promise E and original promise or right

B is the one who is making this promise

to a B is the one who's saying hey look

a I'm not going to build anything over

15 feet on your property right okay but

then what happens B transfers the

property to see right B conveys

Greenacre to see C did not make any

express promise to a right C wasn't the

one who entered into the original

agreement with a right being was B was

the one who said I promise not to

anything over 15 feet but what happens

being conveys Greenacre to see and now

see is the one who violates or breaches

this promise right and the question is

ultimately can a recover from C and so

what our question is going to be in a

real Covenant and equitable servitude

analysis is whether this burden that be

had right this bird and the bee had to

not build anything over 15 feet on

Greenacre

can that burden run with the land to C

such that a can enforce the contract or

it can enforce I'm sorry the Covenant

against C right and recover either

monetary damages or equitable relief

right that's going to be the question

can a recover from C and in order to

make this determination we'll have to

run through elements right and we see we

have six elements up here on the board

and the question is what elements are we

applying right in to determine what

elements were applying we have to go

through two steps step number one are we

dealing with money damages or a quid

will relief

what is the plaintiff seeking what

remedy is the plaintiff seeking if the

plaintiff is seeking compensatory

damages monetary damages or the

plaintiff wants a hundred and fifty

thousand dollars right that's money

damages so we start in this column on

the chart right we'll come right here

and we know we're right here right

because the plaintiff is seeking money

damages so we can just ignore this we

come to here on the chart and we look at

okay money damages the next question is

which is running the benefit or the

burden right well we already said right

B holds the burden right B is the one

who is subject to or bound by this

promise right he's the one that actually

has to refrain from building something

you know over 15 feet on Greenacre the

question is whether that burden runs

from B with the land to C right so here

we're asking does the burden run right

so plaintiff is seeking money damages

and we're asking whether the

and runs not the benefit so that takes

us to this column which means six

elements have to be satisfied in order

for that burden to run with the land

from B to C great we'll see we have a

writing requirement an intent

requirement this idea of touching

concern we have some privity

requirements and notice all six of those

are going to have to be satisfied in

order for the burden of that covenant to

run with the land from B to C in order

for a to recover from C write all six of

these elements will have to be satisfied

right so if a or yeah if a was seeking

equitable relief right say a wanted an

injunction like a is not seeking money a

wants an injunction say C has just

started construction on this 20 foot

house and a wants to shut it down

immediately

so a files for an injunction what what

elements would we need to satisfy there

we can immediately go to this column

right equitable relief and we see it's

actually pretty much the same

requirements whether it's burden or

benefit equitable servitudes is pretty

straightforward

so we'll see there's four elements in

order for that burden to run from B to C

we'll see that there's four elements the

writing requirement the intent

requirement the touching concern

requirement and the notice requirement

if those four elements are met right

then we would say that the burden of

that covenant runs with the land from B

to C the only difference is what remedy

the plaintiff is seeking okay let's talk

a little bit about the benefit what

would that look like where we get into

these benefit columns well say that a is

trying to recover men money damages well

actually a wouldn't be a so say that

same exact act pattern but a actually

transfers his interest to a transfers

conveys Greenacre to D right imagine

that we have a D down here right so a

conveys his property to D and B conveys

green

Aker to see so be convinced Greenacres

see a conveys his property to D the

question is can D sue C well here we'd

have to do both right the burden

analysis would say the same whether the

bird and runs from with the land from B

to C in order for a to recover from C

that stays the same money damages bird

and we're flying those six elements but

from A to D now that's a different

question we're asking does the ability

to enforce the promise run with the land

from A to D right if D is seeking

monetary damages right and we're asking

whether the benefit runs then we'd apply

these four elements right the writing

requirement the intent requirement the

touch and concern element and relaxed

vertical privity right so that would be

if a our original promise C conveyed his

property to D and now D is trying to sue

C the question is whether the benefit

runs with the land from A to D right and

in that case we'd have to do both to get

to a conclusion we'd have to see whether

the benefit runs from a a to D and

whether the burden runs from B to C in

order for D to enforce the Covenant

against C right hopefully that makes

sense right but that's how we get to the

elements right so next we have to break

down and understand each of these

elements right thank you so much for

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[Music]

hi everyone my name is Serena and I'm

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[Music]

you