Property Law · Exam Prep

Covenants And Servitudes Exam Prep

A comprehensive guide on covenants and servitudes, covering key rules, issues, and preparation strategies for your law school exams.

Overview

Covenants and servitudes are essential concepts in property law that govern land use and the rights of property owners. Students must understand the distinctions between different types of covenants, including affirmative versus negative covenants, and the requirements for creating and enforcing these agreements. Additionally, students should be familiar with the principles surrounding easements, licenses, and equitable servitudes, as they play a crucial role in real property transactions and land use restrictions.

Understanding the applicability of the Restatement (Third) of Property is vital, as it provides clarity on these legal constructs. Students should be prepared to analyze scenarios involving both horizontal and vertical privity, and how these concepts influence enforceability of covenants. Familiarity with local case law and precedents can further bolster your understanding and application of these doctrines in exam settings.

Key Rules to Memorize
  1. A covenant runs with the land if it satisfies the requirements of intent, touch and concern, and privity.
  2. Affirmative covenants require the property owner to perform certain acts, while negative covenants restrict certain actions.
  3. Easements differ from covenants as they grant a right to use another's land for a specific purpose.
  4. Equitable servitudes can be enforced against subsequent owners if they have notice of the servitude.
  5. To create a valid equitable servitude, there must be a common plan or scheme for the development of the land.
Common Issue Spotters

Consider whether a neighbor's restrictive covenant is enforceable against a new owner who did not have actual notice of the covenant.

Analyze a scenario involving the breach of a covenant regarding land use (e.g., no commercial activity allowed in a residential area).

Evaluate a situation where a property owner has failed to maintain a shared driveway as outlined in a covenant.

Model Answer Approach

When addressing a question on covenants and servitudes, begin by identifying the relevant facts and the type of covenant or servitude involved. Clarify whether the issue pertains to the enforceability of a covenant against a new owner or whether an equitable servitude is applicable. Explain the criteria for running with the land, noting any relevant case law that illustrates these principles.

Next, examine the relationships between the parties involved, focusing on horizontal and vertical privity if necessary. Discuss potential defenses against enforcement of the covenant, such as unclean hands or changed circumstances. Conclude by stating a well-reasoned prediction on the outcome, emphasizing any tests or frameworks that guide the application of the law in this area.

Mnemonics
  • TEAP: Touch and concern, Easement, Actual notice, Privity
Common Pitfalls
  • Confusing easements with covenants; while both affect land use, they serve different purposes.
  • Failing to recognize the importance of intent in establishing whether a covenant runs with the land.
  • Overlooking the necessity of horizontal or vertical privity when discussing the enforceability of covenants.

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