Equitable Servitudes

I was surprised to find that I hadn't yet written about the topic of equitable servitudes here on the blog since it shows up with some frequency on the MBE. 

Generally, these servitudes are created in a writing that satisfies the Statute of Frauds. The exception is for negative equitable servitudes which may be implied from a common scheme of development. So, if a developer subdivides land and some but not all of the deeds to the subdivisions contain negative equitable servitudes (servitudes that restrict the use of the land), all may be bound provided there was both a common scheme of development and notice was provided to those whom it is claim are bound by the servitude.

As to the common scheme of development, that will be found only if at the time that sales in the subdivision began the developer had a plan that all parcels would be subject to the same restriction.  And as to notice, it may be actual or record notice but often on the MBE the notice is a type of inquiry notice whereby the neighborhood appears to conform to common restrictions.

Assume that someone is bound by an equitable servitude. The next issue is to determine whether that burden will run to the successors of the person bound. It will if the original parties that agreed to the servitude also agreed that the servitude would be enforceable by and against assignees. Also, the assignee of the promisor (the person who promised to be bound) must have notice of the servitude, and the servitude must touch and concern the land. To touch and concern the land requires that the servitude restricts the person burdened by the servitude in his/her use of the land.

For the benefit of the servitude to pass on to assignees of the original parties it is merely required that it was intended that the benefit would pass on and that the servitude touch and concern the benefited property.

As with all issues of equity, a court will not enforce an equitable servitude if the person seeking enforcement is violating a similar restriction on his/her own land (unclean hands) or if the benefited party acquiesced in the violation by the burdened party. Likewise, a court will not enforce an equitable servitude if the benefited party acted in such a way that a reasonable person would believe the servitude was abandoned or if the benefited party fails to bring suit against the violator within a reasonable time (laches). Lastly, the servitude will not be enforced if the neighborhood has changed so significantly that enforcement would be inequitable.

To terminate an equitable servitude requires any of the following: a written release from the benefit holder; merger of the benefited and the burdened land; or condemnation of the burdened property.