Tuesday, October 25, 2011

Property Law Exam Example; Restriction to the land; Covenant

The restriction attached to the land will most likely be viewed by the court as a covenant, which is a promise respecting the use of land. This must be in writing (does it appear in the deed to be in writing?), (to satisfy) real property code (II). (at this point in time, covenant on restriction of use is enforceable/unenforceable - argue both ways).

The first issue here is whether or not the covenant, originally between (A) and (C) runs with the land, and thus obligates (D) to (do x... take down fence, etc.). The rule in Neoponsit stated that the covenant should comply with certain legal requirements. Those requirements being, 1. the grantor + grantee intended that the covenant should run with the land. Intent can be implied by the facts and circumstances at hand. In Spencers Case, the court held that if the subject of a covenant is in existence, the could will infer intent. (apply).
2. it must appear that the covenant is one “touching” or “concerning” the land with which it runs.
(Are lots contiguous?) (Does covenant effect legal rights of D which would otherwise flow from complete ownership?... more than a mere contractual obligation?)
3. It must appear that there is privity of estate between the promisee or the party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant. This means that at some very short period of time, the land was owned by both parties at once.

(O) may file an action as an equitable servitude, which is a covenant being enforced in equity. Tulk is the leading case on the equitable servitude theory. Tulk held that equity requires the parties intend the promise to run, a subsequent purchaser have actual or constructive notice of the covenant (the most important factor), and that the covenant touch and concern the land. (show each).

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