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Equitable Servitudes
A way enforce a covenant when you can’t really prove a covenant (specific performance or injunction).
Exam Analysis:
- You have to talk about both (run through your covenant analysis and something will fail – either touch and concern or privity then go to equitable servitude - Or your request may be for specific performance or injunction.
Tulk v. Moxhay Case
No privity between parties – court used its powers in equity to enforce; even if no privity enforcement is possible.
Pratte v. Balatsos Case
Don’t need “touch and concern” to enforce equitable servitudes.
Property Theory
case represents a special type of easement that only equity recognizes. A body of easement law that is only in equity courts and not law courts. Equity can have both positive and negative easements.
Contracts Theory
Right to specific enforcement is analogous to property right that can be protected in equity. (Touch and concern is out of the window w/ this theory) - Opera Singer example - ct ordered injunction from her singing anywhere else on that night. P also sued other opera house for damages.
Minimum Requirements
Intent and Notice are minimum requirements in Equity.
1. Writing - have to have something written somewhere, does not have to be a deed. 2. Notice – some kind of notice so you can bind future purchases, character of the neighborhood. 3. Intent – the original parties had to intend to bind future purchases, (can look at what happened to the neighborhood over time unlike with a covenant where you look at the document). 4. Touch and Concern – not clear that this is required, but on the exam run through the analysis anyway. 5. Privity – on the exam, remember a case and say Taulk says privity is not required.
Common Scheme
- Implied reciprocal easement. - Raised by property owners to enforce an equitable servitude. - Evidence of intent and notice which makes it equitable since it does not require privity - Recorded Building plan is your best way (shows intent and notice) - - In GA as long as the developer still owns one tract, he can waive the restriction even though there is a common scheme.
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