Real Property MBE Tip of the Day

Answer to the Real Property MBE Question

Subject: Real Property

Legal Issue: Real Covenants vs. Equitable Servitudes

Legal Rule and Analysis: Both a covenant and a servitude restrict how an owner can use his land.  They consist of written promises to do or to refrain from doing something on the land.  The difference between a covenant and a servitude is the remedy sought.  If the plaintiff wants money damages, he will sue under a theory of breach of a real covenant.  If the plaintiff wants something like an injunction that forces the other party to comply, he will sue in equity under a theory of equitable servitude.

Both covenants and equitable servitudes can run with the land if the land is transferred.  If the legal theory is a covenant, for the burden to run, we need both vertical and horizontal privity, intent, notice, and the condition must touch and concern the land.  For the benefit of a covenant to run, we need all of these requirements except for horizontal privity.  For an equitable servitude to run with the land, we only need intent, notice, and touch and concern.

In this case, the daughter is seeking an injunction forcing the son to clean his pool, making this an equitable servitude situation.  Since the son is a grantee of the property, for the son to be held to the promise between the man and the woman, we need intent, notice, and touch and concern elements. We clearly have intent as the facts tell us about a specific written clause in the agreement explicitly stating their intent for the promise to run.  We also have notice as the promise was contained in the deed.  This constitutes proper record notice.  The requirement of properly maintaining the pool certainly touches and concerns the land as it makes the pool more useful, usable, and valuable.  Thus, all of the requirements are met and the equitable servitude will run with the land.

Conclusion: Since the daughter is seeking an injunction, this makes the promise an equitable servitude and the daughter is likely to prevail as all of the requirements for running with the land are met.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (D) is therefore correct. (A) is incorrect because, while it is true that there is no horizontal privity between the man and the woman (a mere neighbor contractual relationship does not suffice), horizontal privity is not required for an equitable servitude to run with the land.  (B) is incorrect because, as just stated, horizontal privity is not required.  Even if it was, we would need horizontal privity between the man and the woman and not between the son and the daughter.  (C) is incorrect because it does not recognize the elements of an equitable servitude that are needed. Just because the woman is an original party to the contract does not mean she can enforce it against the other original party or any party in privity. The woman would have to show that all of the requirements of an equitable injunction were met in order to enforce the contract.

MBE Tip: Always look for the differences when concepts seem too similar on their face.  The difference between covenants and equitable servitudes is a tricky topic because it all just sounds like a promise to do or not to do something.  But why would we devote too much time and energy to two concepts that are identical, just with different names?! There has to be a difference somewhere, and finding it will be the key to understanding this topic.  With these two concepts, the key is to look at the remedy being sought.  If it is money, you should look to the rules for covenants.  If it is an injunction, you should look to the rules for equitable servitudes.  Therefore, if you can spot the differences between topics that seem similar to you, you’ll have a better chance at remembering them and properly identifying them on the exam!