Equitable Servitudes
Equitable servitudes are promises concerning the use of land that equity will enforce against successors, even without privity of estate, when there is notice of the restriction.
An equitable servitude is a covenant respecting the use of land that is enforceable in equity against subsequent purchasers who take with notice, regardless of whether the technical requirements for a real covenant running with the land at law are met. The doctrine originated in Tulk v. Moxhay (1848), which held that a purchaser who acquires land with notice of a restrictive covenant is bound by it in equity, even absent privity of estate.
The creation of an equitable servitude requires: (1) a promise concerning the use of land, (2) an intention that the promise bind successors, (3) a writing satisfying the Statute of Frauds (unless an implied servitude is recognized), and (4) notice to the subsequent purchaser. The notice requirement is the critical element and can be satisfied by actual notice, constructive notice (from the recording of the deed containing the covenant), or inquiry notice (from visible conditions on the land that would prompt a reasonable person to investigate).
Unlike real covenants that run with the land at law (which require horizontal and vertical privity of estate), equitable servitudes do not require privity. This makes equitable servitudes easier to enforce and more commonly used in practice, particularly in the context of residential subdivisions where a developer imposes uniform restrictions on all lots. In Sanborn v. McLean, the court found an implied reciprocal servitude where a developer had established a common scheme of residential-only use, binding even purchasers whose deeds did not contain the restriction.
The remedy for breach of an equitable servitude is an injunction — a court order requiring compliance — rather than money damages (which is the remedy for breach of a real covenant). Equitable servitudes can be terminated by merger, release, estoppel, abandonment, changed conditions rendering the restriction unenforceable, or the expiration of any time limitation. The changed conditions doctrine is particularly important: if the neighborhood has changed so fundamentally that the original purpose of the restriction can no longer be achieved, courts may refuse to enforce it.
Key Elements
- 1A promise concerning the use of land
- 2Intent that the promise bind successors
- 3A writing satisfying the Statute of Frauds (or implied from a common scheme)
- 4Notice to the subsequent purchaser (actual, constructive, or inquiry)
- 5No privity of estate is required
Why Law Students Need to Know This
Equitable servitudes are central to property law exams dealing with land use restrictions. Students must compare equitable servitudes to real covenants, understand the notice requirement, and know how implied reciprocal servitudes arise in common scheme developments.
Landmark Case
Tulk v. Moxhay
Read the full case brief →