Equitable servitude

An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injunctions. In England, when a party is forbidden from certain use, the covenant is called equitable servitude. In the United States, both negative and affirmative equitable servitudes are recognized. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.

Creation

An equitable servitude must be created by a writing, unless it is a negative equitable servitude that may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, such as Massachusetts and California.

Burden

A successor of the promisor is bound if the original promise is in writing, the covenanting parties intended the servitude to be enforceable by and against assignees, the successor of the promisor has actual, inquiry (record), or constructive notice of the servitude, and the covenant touches and concerns the land.

Benefit

The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee's successors if the original parties so intended, and the servitude touches and concerns the benefited property.

Equitable defense

A court will not enforce an equitable servitude under the following circumstances:

• The person seeking enforcement is violating a similar restriction on his own land (unclean hands).
• The holder of the dominant estate acquiesced in violation of the servitude by the holder of the servient estate (acquiescence).
• The holder of the dominant estate acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel).
• The owner of the dominant estate fails to bring suit against the violator within a reasonable time (laches).
• The character of the neighborhood changed sufficiently through development, changes in zoning, or through non-enforcement of the equitable servitude (called the "changed conditions" doctrine).