Equitable Servitudes vs. Restrictive Covenants - How to Differentiate Between The Two on the MBE and MEE

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There seems to be some legitimate confusion concerning the difference(s) between the Restrictive Covenants (hereinafter “Rest Cov”) and Equitable Servitudes (hereinafter “Eq Serv”).  This is one of the more commonly confused areas of the property law topic known as “Servitudes.”  Let us take a deeper dive into the definitions of, and most importantly, the differences between the two.

 Rest Cov–

The definition is a promise to do or not to do something related to land.  This is UNLIKE an easement because it is NOT the grant of a prop interest, but rather a contract or promise regarding land.  Typically, it starts off as a mere contract and not as a grant of an easement.  Typically, monetary damages are the accompanying remedy.

 

Although covenants are similar to easements in that in both cases, the use of land is being restricted or enhanced by an obligation owed by the property owner to another party, real covenants differ from easements in that they are not considered ownership interests in land. Real covenants are promises. They can not be acquired by implication, necessity, prior use or prescription. They are agreements and thus can only be created by promises. Once in existence though, there is little practical difference between a negative easement and a real covenant.

 

Eq Serv–

The definition of the equitable serv is a promise that equity will enforce against successors The remedy that is accompanied as a result of a breach is injunctive relief.

             An equitable servitude is similar to a real covenant. It is a promise that restricts the use of land in some way that is designed to be enforced with specific performance, rather than with monetary damages. In other words, while covenants are usually enforced by the awarding of monetary damages to the aggrieved party, equitable servitudes are enforced with an injunction preventing the use of the property in the manner that is proscribed by the servitude.

 Differences Between the Two -

So what then are the MAJOR differences between the two?  What do I need to remember for purposes of the exam? The remedy involved for breaching the Eq Serv vs. the Rest Cov.  A covenant is enforceable by monetary damages and a servitude is enforced by an injunction to comply with the servitude.  Also, no privity required to run with the land: For an equitable servitude to run with the land, no privity (horizontal or vertical) is required. Thus, for an equitable servitude to be binding upon the successor owner of the servient property, the only elements that are required are a writing, intent, ”touch and concern” and notice. Note that the “notice” requirement is also satisfied, as in the case of a covenant, if the successor owner should have known of the covenant under the circumstances.

 Termination of the Eq Serv and/or Rest Cov -

 How does one go about the termination of the Eq Serv or Rest Cov?  Covenants and servitudes can generally be terminated in the same manner as easements can be terminated (e.g. though expiration, merger, abandonment, etc.).

 Summary -  

What are the bar-exam tested differences between restrictive covenants and equitable servitudes?

             Equitable servitudes differ from covenants in that: (1) They are enforceable by injunction, while a real covenant is remedied by money damages; (2) No horizontal or vertical privity is required for a servitude to run with the land and; (3) Servitudes are ownership interests in land, while real covenants are promises.

             BAR EXAM TIP – If you see in an MBE question or on an MEE that the plaintiff is seeking an injunction?  Think about the rules pertaining to an equitable servitude!  If the plaintiff is seeking monetary damages?  Think restrictive covenant! 

Conclusion

            It is extremely important to understand the difference between the equitable servitude and the restrictive covenant.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on a MEE issue depends on your knowledge of the law. For more information concerning this section of Property law, another area of Property law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

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