§ 34.01 The Equitable Servitude in Context [558-559]

 

The equitable servitude is the primary modern tool for enforcing private land use restrictions.  The usual remedy for violation of an equitable servitude is an injunction, which often provides more effective relief than compensatory damages.

 

§ 34.02 What Is an Equitable Servitude? [559-560]

 

An equitable servitude is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction.

 

§ 34.03 Evolution of the Equitable Servitude [560]

 

The equitable servitude was born in the famous decision of Tulk v. Moxhay, 41 Eng. Rep. 1143 (1848), where England’s chancery court held that a promise to maintain a privately-owned park in an open state, uncovered by buildings, was enforceable in equity against a successor—even though the promise could not have been enforced as a real covenant.

 

§ 34.04 Creation of an Equitable Servitude [561-565]

 

                        [A]       Requirements for the Burden to Run

 

In order for the burden of an equitable servitude to bind the original promissor’s successors, four elements must be met: (1) the promise must be in a writing that satisfies the Statute of Frauds or implied from a common plan; (2) the original parties must intend to burden successors; (3) the promise must “touch and concern” land; and (4) the successor must have notice of the promise.

 

                        [B]       Requirements for the Benefit to Run

 

Only three elements are required for the benefit to run to successors: (1) the promise must be in writing or implied from a common plan; (2) the original parties must intend to benefit successors; and (3) the promise must “touch and concern” land.

 

§ 34.05 Special Problem: Equitable Servitudes and the Subdivision [565-568]

 

If a developer manifests a common plan or common scheme to impose uniform restrictions on a subdivision, most courts conclude that an equitable servitude will be implied in equity, even though the Statute of Frauds is not satisfied.  The common plan is seen as an implied promise by the developer to impose the same restrictions on all of his retained lots.

 

§ 34.06 Termination of Equitable Servitudes [568-573]

 

There are many defenses to enforcement of an equitable servitude.  For example, the landmark decision of Shelley v. Kraemer, 334 U.S. 1 (1948), established that racially- restrictive covenants were unconstitutional and hence unenforceable.  Similarly, when there has been such a major change in neighborhood conditions that enforcement of the restriction would not provide substantial benefit to the dominant land, it is unenforceable under the doctrine of changed conditions.

 

§ 34.07 Remedies for Breach of Equitable Servitudes [573]

 

The standard remedy for breach of an equitable servitude is an injunction.  When the breach at issue is the failure to pay money, courts will usually impose a lien on the affected property, which the plaintiff may collect by foreclosing.

 

§ 34.08 The Restatement (Third) of Property: Servitudes [573-576]

 

As noted in Chapter 33, the Restatement (Third) of Property: Servitudes brings the prospect of revolutionary change to this area by greatly simplifying the law governing the real covenant and the equitable servitude.