1. introduction: the power of legislature to allocate wealth

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3. Equitable Servitude

  • Equitable Servitude = only requirement is that a prior owner agreed to a restriction and a subsequent owner knew about it. Restriction will be enforced regardless of whether the restriction is also enforceable as something else

      • if land has restriction and land conveyed to successor, this successor is bound by restriction if has notice of the restriction

      • The restriction can be created in any way.

  • All the rules about easements that says that not every kind of interest can be created as an easement don’t exist when it comes to equitable servitude = modern open-ended policy sensitive doctrine that says when C acquires from B, with notice of B’s deal with A which makes the land less valuable, cannot get out of the deal

  • If when you purchase the land you know there is a restriction on it, that restriction applies to you  you probably got the land at a lower price because of it, so wouldn’t be fair to let you ignore it

  • Requirements of equitable servitude

i. Person owning land agrees to restriction.

ii. Successor has knowledge of restriction.

  • Equitable servitudes used to enforce restrictions


  • Tulk v. Moxhay (1848) – Conveyance of land from A to B. B agrees to maintain a portion of that land as a park in a square. B sells to C, who has full notice of B’s agreement. C says the covenant does not run with the land and is therefore not enforceable

        • Court says that since C bought with notice of the restriction and would not be fair to not uphold the restriction

  • Trustees of Columbia College v. Lynch (1877) – An owner may subject his land to any servitude and transmit them to others charged with the same and one taking title to land with notice of any outstanding right or claim affecting the right or use of the land, results in equity of servitude = statement of rule of equitable servitudes

  • Shade v. M. O’Keeffe, Inc. (1927) – 2 neighbouring pieces of property - A running grocery store on his property, B agrees not to open a grocery store on his property. C buys from B for the purpose of opening a grocery store. A says that since C bought with notice of restriction it would be inequitable to allow him to get out of it

        • Court says the restriction is contrary to public policy because the purpose of the restriction is to reduce competition, which is a good thing

        • Public policy prevents enforcement of the covenant

  • Hercules Powder Co. v. Continental Can Co. (1955) – Restriction was no one will enter business that will use pine or other wood products. Here the restriction is connected to the development of the land, and not just a restriction of competition like Shade v. O’keefe

  • Petersen v. Beekmere, Inc. (1971) – Requirement of those buying interest in subdivision must also buy share of company that will manage recreation center is not allowed. Some people in subdivision not required to buy shares but can still use rec center. Unclear how will tax these people and also allows for-profit company to tax homeowners in arbitrary manner. This is all contrary to public policy.

  • Harrod v. Rigelhaupt (1973) – Common plan for neighborhood - if landowner has common plan for neighborhood, successor must follow covenant. Here restriction was not to build homes higher than 15 feet. D was enjoined from finishing addition to house because it was too high

        • This is a coherent plan that has in mind preserving the views of everyone in the development

        • There was due notice, it is equitable and reasonable so it is enforceable

E. Conditions

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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