Equitable Servitudes – a promise that equity will enforce against successors.
Accompanied by
injunctive relief.
- To create an equitable servitude to bind successors (WITNES)
- Writing – generally, but not always original promise was in writing
- Intent – original parties intended that it would be enforceable by and against successors.
- Touch and Concern – promise affects parties and landowners.
- Notice – Assignees of burdened land had notice of the promise.
- Privity is not required to bind successors
- Implied equitable servitude—the general or common scheme doctrine:
- EX: A subdivides her land into 50 slots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can he be enjoined from doing so?
- YES – if the two elements of the general or common scheme doctrine apply. Under common scheme, the court will imply a reciprocal negative servitude (implied equitable servitude) to hold the unrestricted lot holder to the restrictive covenant.
- Two elements of the general or common scheme doctrine:
- When the sales begin, the sub-divider (A): had a general scheme of residential development, which included defendant’s (B’s) lot.
- The defendant lot-holder (B) had notice of the promise contained in the prior deed.
- Three forms of notice potentially imputed to defendant: (AIR)
- Actual notice: D had literal knowledge of the promises in the prior deeds.
- Inquiry notice: neighborhood conforms to the common restriction (lay of the land)
- Record notice: the form of the notice sometimes imputed to buyers on the basis of the publicly recorded notice.
- (ii) and (iii) are more likely. They are both forms of constructive notice imputable to D irrespective of D’s actual knowledge.
- Note on record notice: Courts are split. Some take the view that a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor. The better view is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor. It is better, because it is more efficient and less burdensome on D and D’s title searcher.
- Equitable defenses to enforcement of an equitable servitude:
- Changed conditions: the changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area or subdivision has changed.
- LIMITED or PIECEMEAL change is never good enough