Equitable servitude

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Property law
Part of the common law series
Acquisition of property
Gift  · Adverse possession  · Deed
Lost, mislaid, or abandoned
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 of interests in land
Bona fide purchaser
Torrens title  · Strata title
Estoppel by deed  · Quitclaim deed
Mortgage  · Equitable conversion
Action to quiet title
Limiting control over future use
Restraint on alienation
Rule against perpetuities
Rule in Shelley's Case
Doctrine of worthier title
Nonpossessory interest in land
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 areas of the common law
Contract law  · Tort law
Wills and trusts
Criminal Law  · Evidence

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.

Contents 1 Creation 2 Requirement for burden to run 3 Requirement for benefit to run 4 Equitable defenses to enforcement

[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 covenanting parties intended that the servitude be enforceable by and against assignees,
2. the successor of the promisor has actual, inquiry, or record notice of the servitude, and
3. 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).