Equitable Servitudes
Rule
An equitable servitude is a restriction on the use of land that is enforceable in equity (by injunction) even if it fails as a covenant at law. It arises when the technical requirements for a real covenant are not met, but the parties had notice and intent to be bound.
Elements
- Intent: original parties intended the restriction to bind successors
- Notice: successor had actual, constructive, or inquiry notice of the restriction
- Touch and concern: restriction relates to land use
No requirement of horizontal or vertical privity (unlike real covenants for the burden).
Origin
- Tulk v. Moxhay (1848): covenant to maintain a London square as a garden; subsequent purchaser with notice was bound by equity even though no horizontal privity existed
- Equity will enforce the restriction if it would be unconscionable to allow a buyer with notice to ignore it
Remedy
- Injunction only (not damages)
- If you want damages, must satisfy covenant requirements
Comparison to Real Covenant
| Element | Real Covenant (burden) | Equitable Servitude |
|---|---|---|
| Intent | Required | Required |
| Notice | Required | Required |
| Touch & concern | Required | Required |
| Horizontal privity | Required | Not required |
| Vertical privity | Required | Not required |
| Remedy | Damages | Injunction |
Common Application
A restriction that fails as a real covenant for lack of horizontal privity (e.g., neighbors agree directly, not through a common grantor) may still be enforced as an equitable servitude if the successor had notice.
Changed Conditions
Equitable servitudes may become unenforceable if changed conditions make the purpose of the restriction impossible to achieve. Courts will not issue an injunction if the restriction no longer provides real value.
Policy
- Notice as the key constraint: unlike real covenants (which require privity), equitable servitudes bind anyone with notice — this reflects equity’s concern with unconscionable conduct rather than the legal requirements of privity
- Common plan doctrine: in a planned subdivision, a buyer with notice of a general scheme of restrictions takes subject to those restrictions even if not in her deed — Sanborn v. McLean; constructive notice from neighboring deeds
- Changed conditions: equity will not enforce a restriction that can no longer achieve its purpose; courts exercise discretion in granting or withholding injunctions
- Restatement Third: the modern trend (Restatement 3d Property: Servitudes) abolishes privity requirements and treats covenants and equitable servitudes under a unified “servitude” framework
Policy
- Notice as the key constraint: unlike real covenants (which require privity), equitable servitudes bind anyone with notice — equity’s concern is unconscionable conduct, not the legal requirements of privity
- Common plan doctrine: in a planned subdivision, a buyer with notice of a general scheme of restrictions takes subject to those restrictions even if not in her deed — constructive notice from neighboring deeds
- Changed conditions: equity will not enforce a restriction that can no longer achieve its purpose; courts exercise discretion in granting or withholding injunctions
- Modern reform: the Restatement Third, Property (Servitudes) abolishes privity requirements and treats covenants and equitable servitudes under a unified “servitude” framework
Key Cases
- Tulk v. Moxhay — root case; covenant to maintain Leicester Square enforced in equity against purchaser with notice
- Shelley v. Kraemer — racially restrictive covenant enforced as equitable servitude by MO Supreme Court; struck down on 14th Amendment grounds by U.S. Supreme Court