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. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injuctions. In England, when a party is forbidden from certain use, the covenant is called equitable servitude. In the United States, 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.
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Equitable servitudes must be created by a writing, unless it is a negative equitable servitude that 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, such as Massachusetts and California.
A successor of the promisor is bound if the original promise is in writing; the covenanting parties intended the servitude to be enforceable by and against assignees; the successor of the promisor has actual, inquiry, or record notice of the servitude; and the covenant touches and concerns the land.
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.
A court will not enforce an equitable servitude under the following circumstances: