EASEMENTS III: COVENANTS AND EQUITABLE SERVITUDES
Dr. Tony Nettleman, RPLS, Esq.
YOU CAN ONLY PAINT YOUR HOUSE THREE SHADES OF WHITE
White House, Red Roof, Anyone?
IN ORDER TO HAVE A VALID COVENANT:
• It Must Be Enforceable
• The Original Covenanting Parties Must Intend That The Covenant Run With The Land
• Must Have Horizontal And Vertical Privity
• Purchaser Of Burdened Property Must Have Notice Of Covenant
COVENANT MUST BE ENFORCEABLE
• Not Unreasonable as a Matter of Public Policy
• Not Too Vague
• In Writing That Complies With Statute of Frauds
McHuron v. Grand Teton (1995)FACTS
• The new home included fiberglass shignles, not cedar
3) IN WRITING THAT COMPLIES WITH STATUTE TO PREVENT FRAUDS
• Identify the parties involved
• Identify the land being conveyed
• Express the grantor’s intent to convey the land to the grantee
• Include the signature of the grantor
STATUTE OF FRAUDS:INCLUDE THE SIGNATURE OF THE GRANTOR
COMMON LAW REQUIREMENTS
• The covenant must not be personal in nature - it must benefit the land rather than an individual
• The covenant must 'touch and concern' the land - it must affect how the land is used or the value of the land
• The benefited land must be identifiable.
HORIZONTAL PRIVITY
horizontal is privity of estate between original covenanting parties
ORIGINAL COVENANTING PARTIES: GRANTOR/GRANTEE
VERTICAL PRIVITY
Smith (1898)
Johnson (1921)
Able (1947)
Dickenson (1987)
YES or NO?
• Warranty deed• Quitclaim deed• Adverse possession• Prescriptive
easement
ACTUAL NOTICE
actual awareness or direct notification of a specific fact, demand, claim, or proceeding [had actual notice of the meeting] called also express notice