Black-letter propositions
- 01
A real covenant traditionally requires writing, intent, notice for the burden, horizontal and vertical privity as applicable, and touch and concern; damages are the remedy.
- 02
An equitable servitude requires writing or implied common scheme, intent, notice for the burden, and land relation; injunction is the remedy.
- 03
Reciprocal restrictions can arise from a developer's common plan plus purchaser notice.
- 04
Benefits and burdens must be analyzed separately for each successor.
- 05
Defenses include changed conditions, abandonment, laches, estoppel, and unclean hands.
Use this attack sequence under time
Frame the issue
Quote promise and identify remedy.
Resolve the next checkpoint
Analyze benefit and burden separately.
Resolve the next checkpoint
Apply writing, intent, notice, privity, and land relation.
Resolve the next checkpoint
For subdivision, prove plan and notice.
Finish the conclusion
Apply equitable defenses.
Common wrong turns
- Recording proves notice, not every element.
- Changed conditions must substantially defeat the restriction's purpose.
- Zoning permission does not override private covenant.
Worked example
A recorded subdivision declaration limits every lot to residential use; a buyer with record notice opens a factory.
The restriction can be enforced as an equitable servitude if intent and land relation are shown, regardless of permissive zoning.
Practice this topic
Real covenants
Cornell defines a real covenant as a promise or obligation by a landholder that limits their use of the property, either requiring an act, an affirmative covenant, or prohibiting one, a negative covenant. Examples include requiring the homeowner to keep trees trimmed and forbidding a fence. Homeowners' associations are among the most common covenant enforcers and may restrict the height and size of buildings, construction materials and paint color.
Covenants related to property have their own common-law and statutory rules, separate from contract covenants that apply only to the contracting parties.
Applying the rules
Cornell's summaries quoted here define the covenant but do not state the requirements for a covenant to run with the land or for equitable enforcement. State the requirements your course teaches, and apply them to the original parties, the successors and the type of relief sought.
A common plan or subdivision scheme is a fact pattern where many lots share the same restrictions, so identify who may enforce against whom.
Cornell says covenants in contract law apply exclusively to the parties to the contract, while covenants related to property follow their own rules. That is the reason to ask early whether the promise binds only the original parties or also successors to the land. The answer decides who can sue, who can be sued and what remedy is available.
Frequently asked questions
What is the controlling rule for real covenants, equitable servitudes, and common plans?+
Successor liability for land promises depends on the legal or equitable covenant elements and the exact remedy sought.
How should I analyze real covenants, equitable servitudes, and common plans on the bar exam?+
Quote promise and identify remedy. Analyze benefit and burden separately. For subdivision, prove plan and notice. Apply equitable defenses.
What is a real covenant?+
A promise or obligation by a landholder that limits their use of the property, requiring or prohibiting a specific act.
What is the difference between affirmative and negative covenants?+
An affirmative covenant requires an act, such as keeping trees trimmed, and a negative covenant prohibits one, such as building a fence.
Who commonly enforces covenants?+
Homeowners' associations, which are among the most common covenant enforcers and may restrict building height, materials and paint color, according to Cornell.
How do property covenants differ from contract covenants?+
Property covenants follow their own common-law and statutory rules, while contract covenants apply only to the parties to the contract.
Do Cornell's summaries state when a covenant runs with the land?+
No. They define the covenant, so apply the requirements your course teaches for running with the land.