Real Property · Covenants Servitudes

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MBE Real Property: Covenants Servitudes

An overview of covenants and servitudes as tested on the MBE, highlighting key legal principles and common patterns.

Overview

Covenants and servitudes are essential tools in real property law designed to manage the rights of landowners concerning their property and to create cohesive communities. Covenants are promises made by property owners to do or refrain from doing something regarding their land, while servitudes provide certain rights over the property of another. Understanding the distinctions and specific requirements for creating, enforcing, and terminating these legal interests is crucial for effective land use and dispute resolution.

On the Multistate Bar Examination (MBE), questions concerning covenants and servitudes often test students on the formation, enforcement, and breach of these interests, as well as their roles in private land use management. Common issues include the requirements for imposing covenants (e.g., intent, touch and concern, privity), the distinction between affirmative and negative covenants, and the effects of changes in property law, such as the impact of the Restatement (Third) of Property.

Students should be prepared to analyze factual scenarios involving both traditional common law principles and modern statutory interpretations, stressing the importance of understanding the application of these doctrines to real-world property issues.

Key Rules
  1. Rule 1: A covenant must satisfy the elements of intent, touch and concern, and privity for enforcement.
  2. Rule 2: Negative covenants restrict the use of land, while affirmative covenants require a party to take specific action.
  3. Rule 3: A servitude can be created by express agreement, implication, or necessity.
  4. Rule 4: The running of the burden of a covenant requires horizontal and vertical privity.
  5. Rule 5: Change in the surrounding circumstances may affect the enforceability of a covenant.
  6. Rule 6: Equitable servitudes can be enforced by injunction even when there is no running of the covenant.
  7. Rule 7: A change in property ownership does not automatically terminate a covenant unless it expressly states otherwise.
  8. Rule 8: A covenant may be deemed abandoned if the burdened owner acts in a way that is inconsistent with the covenant.
Common Question Patterns
  • Distinguish between covenants and servitudes in a given fact pattern.
  • Analyze the enforceability of a covenant based on specific facts and required elements.
  • Evaluate the implications of changes in property ownership or surrounding circumstances on enforceability.
  • Determine the rights and obligations associated with a specific covenant breach.
  • Decide if specific actions or restrictions constitute a valid servitude.
Practice Questions

1. A homeowner agrees in writing to maintain a garden in their front yard as a condition of purchasing their property. Later, the homeowner removes the garden. Can the neighbor enforce this promise?

A. A) Yes, because it touches and concerns the land.(Correct)

B. B) No, because it is a personal promise.

C. C) Yes, because all homeowners in the area agreed.

D. D) No, because the agreement requires no writing.

Explanation: The promise touches and concerns the land because it enhances the property's aesthetic value, making it enforceable.

2. Property A has a covenant that prohibits any buildings taller than one story. Property B, adjacent to A, is later built with a three-story building. If property A's owner seeks an injunction, what will determine the outcome?

A. A) The intent behind the original covenant.(Correct)

B. B) The change in local zoning laws only.

C. C) The number of neighbors who are supportive of the building.

D. D) The overall aesthetics of the neighborhood.

Explanation: The intent behind the original covenant, specifically whether it can enforce its restrictions based on the original intent.

3. Property X is subject to an easement allowing neighboring property owners access to a shared pathway. If Property Y is sold, does the easement remain in effect?

A. A) Yes, easements run with the land.(Correct)

B. B) No, they terminate upon sale.

C. C) Yes, but only if specified in the deed.

D. D) No, easements are only enforceable to original parties.

Explanation: Easements typically run with the land and remain enforceable even after the property is sold.

4. A landowner has not enforced a restriction against parking vehicles in their yard for several years. A new neighbor begins parking in the yard, and the original owner seeks to enforce the restriction. What is likely the result?

A. A) The restriction is enforceable as before.

B. B) The course of conduct may lead to a finding of abandonment.(Correct)

C. C) The enforcement is automatic due to its presence in the deed.

D. D) The neighbor can park because they didn’t cause the original violation.

Explanation: The landowner's failure to enforce the restriction over time likely constitutes abandonment.

5. A developer creates a subdivision with a recorded declaration containing provisions that require properties to maintain the landscaping. One homeowner refuses to comply. Can the homeowners' association enforce this provision?

A. A) Yes, if the developer intended for the covenant to run with the land.(Correct)

B. B) No, because the covenant was not part of the original deed.

C. C) Yes, because all homeowners are part of the association.

D. D) No, because the provision is only a guideline.

Explanation: The homeowners' association can enforce the provision if it was intended to run with the land and is part of the recorded declaration.

Test-Taking Tips
  • Focus on understanding the distinctions between affirmative and negative covenants.
  • Be aware of the requirements for covenants to run with the land, including privity issues.
  • Practice identifying implications of non-enforcement and abandonment in fact patterns.
  • Review common exceptions to normally enforceable covenants.
  • Prepare to analyze how surrounding circumstances affect the enforceability of covenants and servitudes.

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