Covenant Running with the Land vs. Equitable Servitude
A detailed comparison of these two property rules, including key differences, exam strategies, and guidance on when to apply each.
Overview
Real covenants and equitable servitudes are both promises concerning the use of land that can bind subsequent owners, but they differ in their requirements, the type of relief available, and the formalities of creation. Understanding the distinction is essential for property exams.
A real covenant (covenant running with the land) is enforceable at law, meaning the remedy is money damages. For a covenant to run with the land and bind subsequent owners, the following requirements must be met: (1) the covenant must be in writing (Statute of Frauds), (2) the original parties must have intended the covenant to bind successors, (3) the covenant must "touch and concern" the land (affect the parties as landowners rather than as individuals), (4) there must be horizontal privity (some shared interest in the land between the original parties, such as a grantor-grantee relationship), and (5) there must be vertical privity (the successor must hold the entire estate of the original party).
An equitable servitude is enforceable in equity, meaning the remedy is an injunction. The requirements are less demanding: (1) writing (Statute of Frauds, unless implied from a common scheme), (2) intent to bind successors, (3) touch and concern, and (4) notice (actual, constructive, or inquiry). Critically, neither horizontal nor vertical privity is required for equitable servitudes. This makes equitable servitudes much easier to enforce against subsequent purchasers, which is why they are the dominant mechanism for enforcing subdivision restrictions and homeowners' association covenants.
Key Differences
| Aspect | Covenant Running with the Land | Equitable Servitude |
|---|---|---|
| Remedy | Money damages (enforced at law) | Injunction (enforced in equity) |
| Horizontal privity | Required (grantor-grantee or other shared interest) | Not required |
| Vertical privity | Required (successor must hold entire estate) | Not required |
| Notice to successor | Generally required but subsumed in privity analysis | Explicitly required (actual, constructive, or inquiry notice) |
| Creation without writing | Must satisfy Statute of Frauds | Can be implied from a common scheme (reciprocal negative easement theory) |
Exam Tips
On a property exam, analyze both real covenants and equitable servitudes when a covenant question arises. Start with the real covenant analysis (harder to establish because of the privity requirements), then pivot to equitable servitude (easier because no privity is needed). If horizontal or vertical privity fails, the covenant cannot run at law, but it may still be enforceable as an equitable servitude if the successor had notice. The most common exam scenario is a subdivision where a developer records covenants: these typically fail as real covenants between non-adjacent lot owners (no horizontal privity) but succeed as equitable servitudes (implied from common scheme with constructive notice via recording).
When to Apply Which
Apply real covenant analysis when the plaintiff seeks money damages for breach of a land-use promise. Apply equitable servitude analysis when the plaintiff seeks an injunction to enforce a land-use restriction. In practice, analyze both in every covenant question. If both requirements are met, the plaintiff can choose either remedy. If only equitable servitude requirements are met (because privity is lacking), the plaintiff is limited to an injunction. For subdivision restrictions, equitable servitudes are almost always the more relevant doctrine.