Start off with Wheeler v. Schad, Morse v. Aldrich, there to teach the formalistic approach to covenants. Three requirements, privity, touch and concern. Wheeler, two agreements to do with a parcel of land, intended to run with the land. Building of the dam would not make sense unless all of the parties were obligated. But the court said in order to have an obligation run you need two kinds of privity – vertical, the same estate, horizontal, the relationship between the grantor and grantee, at the time of the promise to repair and reimburse. In this case, they were merely neighbors so the court would not find horizontal privity and so the burden does not run. Note, the court said had that agreement been part of the initial transaction, the land for the second mill maintanance, the court would have found horizontal privity. Finding it in those circumstances would have been the realization of horizontal privity, an agreement going along with the deed in the original transaction that’s enough in most jurisdictions to get horizontal privity. Wheeler, also talked about tenurial relationship, between a landlord and tenant, have the most covenants that run with land, bind the lessee.
Morse v. Aldrich
All that Morse v. Aldrich adds is the second kind of horizontal privity, simultaneous interest in the land. There had been an original sale between Morse and Aldrich’s predecessor in interest, regarding a pond between the two properties. Morse was given a right to go onto the pond to muck it out. The original grantor, grantee agreement, established a simultaneous interest. Another agreement later tried to restate the agreement, to eliminate disputes between the two. The later agreement was being enforced so there was no horizontal privity. Only came from the fact that they were not merely neighbors, by that time they were neighbors who shared a simultaneous interest in land, so you got horizontal privity in land.
Leading case in the deformalization of covenant requirements. The court decides on two levels to overlook defects in the formal transaction and look at substance and thereby bind subsequent grantees of burdened land. The first one had to do with vertical privity and whether or not the benefit would run. And whether or not the Realty association could enforce the obligations of the bank. The benefit had to run because the realty company was not there, so the benefit had to run vertically to NPOA, but the NPOA did not have the same estate as the original promisee, they didn’t have any estate at all, so no privity. The court was left with disallowing it or looking beyond the formal identity of NPOA and considering its collective identity, who makes up the NPOA, property owners have the same estate they got from the Realty company. NPOA may not have the same estate but its membership does, that’s enough.
The second problem was touch and concern. Paying homeowner’s dues is a major issue, a fee that will be used in the development in order to make the land itself usable so it clearly touches and concerns the land. At the beginning of these developments, the developers retain control of the homeowner’s association, receives the dues from the grantees and uses the dues for purposes other than the development in question for the benefit of the developer, that would not touch and concern the land.
Tulk v. Moxhay
Facts: Lester Square surrounded by houses. One of the parties, Tulk sells Melms with a covenant to maintain the iron railings and maintain a statue of George I. Elms agrees to the stipulations, then through a series of conveyances it gets to Moxhay who declares intent to build on the square. Tulk then sues Moxhay.
Issue: should Moxhay be allowed to build if he had notice of the covenant?
Rule: enforce the obligation as an equitable servitude. Tulk to Elms, then Elms through conveyances to Moxhay. The burden has to run. Elms has the burden, Tulk has the benefit. Moxhay has the burden, Tulk has the benefit. The burden has to run because Elms is not there. No horizontal privity, Moxhay got the same estate. No agreement between Tulk and Moxhay, Moxhay didn’t touch and concern. Have grantor, grantee privity, it is enough most times, but not in England so it fails as a covenant. So can’t enforce it as a covenant. But the court says that he knew of the servitude, bought the land for less as a result of the covenant. It would be unjust to let him violate it.
Problem with this servitude, restricts use of the land. The maintenance of the land is important because it impacts the value of the land.
Things to remember: a covenant doesn’t work because horizontal privity is not present. No question that this does touch and concern the land. What did Tulk win, the right to keep the land the way he wanted it. Nobody can change it. The initial obligation was of negative value. Moxhay knew of all of the initial obligations. He was stopped negatively but not affirmatively. Not bound by the covenant in an equitable servitude, only going to enforce against the person with the burden that which is equitable to enforce against.
Institutional capacity reason: difficult to administer affirmative injunctions.
Only going to enforce what is fair, not bound by the covenant. Importance of making the covenant run. Equitable servitude will get you what the court feels is equitable at the time. Here enforcing equitable servitude to not build, not that he must maintain. In this case only enforce part of the covenant. If Moxhay really wanted to build, hiring someone to paint the railings would be cheap.
Why didn’t Tulk just use an easement?
Affirmative duties created by easements do not run with the land. Couldn’t even attempt to get the affirmative duties.
Didn’t use easements for recreational stuff. And didn’t use easements for negative reasons. Limited set of negative easements available, e.g. light and air. Here really an easement not to build, not available.
Conservation easements makes them available, but not available at that time.