Hypothetical : Suppose A owns Redacre and B owns the adjacent parcel Orangeacre. Both parcels are undeveloped, mountainous land. A plans to create a vacation subdivision on Redacre where weary city residents can relax in peaceful quiet. A and B accordingly enter into an agreement whereby B promises that no industrial uses will be permitted on Orangeacre in exchange for a $50,000 payment from A. A develops the subdivision and conveys all the lots to buyers. B then leases Orangeacre to C for a term of 60 years and C builds a noisy lumber mill on the land. g. The lot owners (A’s successors) cannot enforce the promise against C (B’s successor) as a real covenant. Why? Because both horizontal and vertical privity are missing! h. This example illustrates the limitations of the real covenant. The traditional threshold for establishing a real covenant is quite high. The equitable servitude was invented in the 19 th Century to fill this doctrinal vacuum. It is generally easier to enforce a promise as an equitable servitude than as a real covenant because the requirements for an equitable servitude are more liberal than the requirements for a real covenant. 32
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- Spring '16
- Property Law, The Land, Future interest