Equitable Servitude
What is the Equitable Servitude?
A covenant concerning the use of land enforceable in equity by injunction against subsequent owners with notice, without requiring horizontal privity between the original parties.
Definition
An equitable servitude is a promise respecting the use of land that is enforceable in equity -- typically through injunctive relief -- against subsequent owners who take with notice of the restriction. The doctrine originated in the landmark case of Tulk v. Moxhay (1848), which held that a restrictive covenant could be enforced against a subsequent purchaser who had notice of it, even if the technical requirements for a real covenant running with the land at law were not satisfied.
The requirements for an equitable servitude are generally less demanding than those for a real covenant at law. The claimant must show (1) a writing satisfying the Statute of Frauds (unless an implied equitable servitude arises from a common scheme), (2) intent that the restriction bind successors, (3) that the restriction touches and concerns the land, and (4) that the subsequent owner had notice (actual, constructive, or inquiry notice). Critically, horizontal privity between the original parties is not required, which is the primary advantage of equitable servitudes over real covenants.
Equitable servitudes are particularly important in the context of residential subdivisions, where a developer imposes uniform restrictions on all lots. Even if a particular lot's deed does not contain the restriction, courts may imply a reciprocal negative easement (equitable servitude) when a common scheme of development is established and the purchaser had inquiry or constructive notice of the restrictions. Equitable servitudes can be terminated by changed circumstances, abandonment, acquiescence in violations, merger, or expiration of a stated term.
Key Elements
- 1A writing satisfying the Statute of Frauds (or a common scheme establishing an implied servitude)
- 2Intent that the restriction bind successors
- 3The restriction touches and concerns the land
- 4The subsequent owner had notice (actual, constructive, or inquiry notice)
- 5Horizontal privity is NOT required (unlike real covenants at law)
Landmark Cases
Tulk v. Moxhay
2 Ph. 774, 41 Eng. Rep. 1143 (1848)
Established the doctrine of equitable servitudes, holding that a restrictive covenant is enforceable in equity against subsequent purchasers who take with notice.
Sanborn v. McLean
233 Mich. 227 (1925)
Established the implied reciprocal negative easement doctrine, holding that a common scheme of development can impose restrictions on lots even when they are not in the lot's deed, if the purchaser had inquiry notice.
Neponsit Property Owners' Association v. Emigrant Industrial Savings Bank
278 N.Y. 248 (1938)
Broadly interpreted the touch and concern requirement to uphold homeowners' association assessments as enforceable servitudes.
Shelley v. Kraemer
334 U.S. 1 (1948)
Held that judicial enforcement of racially restrictive covenants constitutes state action violating the Equal Protection Clause, rendering such servitudes unenforceable.
Exam Tips
- If a covenant fails as a real covenant at law (usually due to lack of horizontal privity), always analyze whether it can be enforced as an equitable servitude in equity.
- For common scheme/implied reciprocal servitude questions, look for a subdivision where the developer imposed uniform restrictions. Then check whether the buyer of a non-restricted lot had notice.
- Remember that equitable servitudes are enforced by injunction, while real covenants are enforced by damages -- the remedy distinguishes the two.
Common Mistakes to Avoid
- Assuming that the absence of a restriction in a particular deed means no equitable servitude exists -- a common scheme of development can impose restrictions even without express language in every deed.
- Forgetting that racially restrictive covenants, while they may technically exist in deeds, are constitutionally unenforceable after Shelley v. Kraemer.
Memory Aid
Equitable servitudes need WINE: Writing, Intent, Notice, Touch and concern (Every element except horizontal privity).