This is a law term used for real property that describes nonpossessory interest in land which is used similar to that have covenant law. Although, both equitable servitudes and covenants are different. The difference can be determined based on what type of remedy the plaintiff is seeking. For instance, an equitable servitude holder will seek for an injunction, whereas the covenant holder will seek money damages. Furthermore, when a party in England has been forbidden from specific use, a covenant is referred to as equitable servitude. Within the U.S, both affirmative and negative equitable servitudes can be recognized.
Creating Equitable Servitude
In order for equitable servitudes to be created, it must be done in writing. However, there is an expectation with negative equitable servitude which can be implied through common schemes of developing residential subdivisions, long as the owner of land has notice of this agreement. Although, there are certain states that do not recognize the implied negative servitudes, including California and Massachusetts.
Burdens of Equitable Servitude
When equitable servitudes are created in writing, the successor of a promisor will therefore, be bound by the original agreement. In addition, covenanting parties have the intentions of servitudes being lawfully enforced by, and against assignees if needed. Furthermore, the successor of promisor receives the record, constructive, or actual notice of servitude. Meanwhile, the covenant concerns and touches said land.
Benefits of Equitable Servitude
When it comes to equitable servitudes, the benefits include continuing with the land in the future. Therefore, equitable servitudes are lawfully enforceable by the successors of the promise if intended by the original parties, where the servitude concerns and touches the property of the benefiting equitable servitude.
Although equitable servitudes are enforced by law, there are also some cituations and circumstances when the servitudes are not enforced by the courts, such as:
- The dominant estate holder acquiesced in violations for the equitable servitude according to the servient estate holder (acquiescence).
- The person attempting enforcement is conducting a violation with similar restrictions on his/her own land.
- The dominant estate owner failed to bring forward a suit against said violator within a reasonable period of time.
- The dominant estate holder conducted activities in a method which would result in a reasonable person believing the covenant had been abandoned.
- The neighborhood’s character has changed greatly over time due to zoning changes, development, or non-enforcement of equitable servitudes known as “changed conditions” doctrine.
There are several benefits for both the land owner and other parties for obtaining equitable servitudes, but they can also create different types of burdens on either party. Generally, equitable servitudes, especially created in writing can be enforced by law. Although, there are situations where one party can defend against the servitude in case of a violation by the other party.