Equitable servitude
Encyclopedia
An equitable servitude is a term used in the law
of real property
to describe a nonpossessory interest in land
that operates much like a covenant running with the land
. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injuctions. In England
, when a party is forbidden from certain use, the covenant is called equitable servitude. In the United States
, both negative and affirmative equitable servitudes are recognized. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.
and California
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
to describe a nonpossessory interest in land
Nonpossessory interest in land
A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another...
that operates much like a covenant running with the land
Covenant running with the land
A covenant, in its most general sense, is a solemn promise to engage in or refrain from a specified action.A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do or not do some action. In real property law, the term real covenants is used for conditions tied...
. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injuctions. In England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, when a party is forbidden from certain use, the covenant is called equitable servitude. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, both negative and affirmative equitable servitudes are recognized. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.
Creation
Equitable servitudes must be created by a writing, unless it is a negative equitable servitude that may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, such as MassachusettsMassachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
and California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
.
Burden
A successor of the promisor is bound if the original promise is in writing; the covenanting parties intended the servitude to be enforceable by and against assignees; the successor of the promisor has actual, inquiry, or record notice of the servitude; and the covenant touches and concerns the land.Benefit
The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee's successors if the original parties so intended, and the servitude touches and concerns the benefited property.Equitable defense
A court will not enforce an equitable servitude under the following circumstances:- The person seeking enforcement is violating a similar restriction on his own land (unclean handsUnclean handsUnclean hands, sometimes called the clean hands doctrine or the dirty hands doctrine, is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with...
). - The holder of the dominant estate acquiesced in violation of the servitude by the holder of the servient estate (acquiescence).
- The holder of the dominant estate acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppelEstoppelEstoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
). - The owner of the dominant estate fails to bring suit against the violator within a reasonable time (lachesLaches* Laches : an equitable principle in Anglo-American law* Laches : an Athenian aristocrat * Laches : a Socratic dialogue of Plato-See also:* Lache...
). - The character of the neighborhood changed sufficiently through development, changes in zoning, or through non-enforcement of the equitable servitude (called the "changed conditions" doctrine).