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Easements II: Covenants and Equitable Servitudes

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Non-possessory rights encompass much more than simple easements. Large subsets of these non-possessory rights are created by voluntary agreements known and covenants and equitable servitudes. These two types of non-possessory rights exist in almost every planned subdivision and office-building complex. But few land surveyors even know they exist.

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Easements II: Covenants and Equitable Servitudes

  1. 1. EASEMENTS III: COVENANTS AND EQUITABLE SERVITUDES Dr. Tony Nettleman, RPLS, Esq.
  2. 2. YOU CAN ONLY PAINT YOUR HOUSE THREE SHADES OF WHITE White House, Red Roof, Anyone?
  3. 3. 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
  4. 4. COVENANT MUST BE ENFORCEABLE • Not Unreasonable as a Matter of Public Policy • Not Too Vague • In Writing That Complies With Statute of Frauds
  5. 5. McHuron v. Grand Teton (1995) FACTS • The new home included fiberglass shignles, not cedar
  6. 6. 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
  7. 7. STATUTE OF FRAUDS: INCLUDE THE SIGNATURE OF THE GRANTOR
  8. 8. 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.
  9. 9. HORIZONTAL PRIVITY horizontal is privity of estate between original covenanting parties
  10. 10. ORIGINAL COVENANTING PARTIES: GRANTOR/GRANTEE
  11. 11. VERTICAL PRIVITY Smith (1898) Johnson (1921) Able (1947) Dickenson (1987) YES or NO? • Warranty deed • Quitclaim deed • Adverse possession • Prescriptive easement
  12. 12. 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

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