What are the elements of an equitable servitude?
Thus, for an equitable servitude to be binding upon the successor owner of the servient property, the only elements that are required are elements 1,2,3 and 6 (writing, intent, ”touch and concern” and notice) above.
What is an example of an equitable servitude?
Some examples of equitable servitudes are: A promise to maintain a property as an open park. A promise to use property for residential use only. A promise not to build tall buildings on the property.
What is the difference between an easement and an equitable servitude?
An easement involves a right to use the other’s land, a real covenant the right to insist that the other perform a land related duty, and an equitable servitude the right to control the use to which the other may put his land.
What are the two types of servitude?
Generally, there are two types of servitudes that you would normally come across; a personal servitude and a real (praedial) servitude. A personal servitude is a servitude registered over immovable property in favour of an individual. The most common servitudes is a usufruct.
How do you enforce an equitable servitude?
Equitable Servitude
- They are enforceable by injunction, while a real covenant is remedied by money damages.
- No horizontal or vertical privity is required for a servitude to run with the land.
- Servitudes are ownership interests in land, while real covenants are promises.
Does equitable servitude have to be in writing?
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.
How is an equitable servitude created?
When can a servitude be terminated?
A praedial servitude is terminated by: Agreement A bilateral notiarial deed is required. Abandonment. At present the practice is to call for a notarial deed between the parties as there is no provision for cancellation on application, as in the case of personal servitudes which have been abandoned (section 68).
What are examples of servitude?
A common example of a personal servitude is the use of a house. Real servitudes, also called landed servitudes, benefit the owner of one estate through some use of a neighboring estate. At Civil Law, real servitudes are divided into two types: rural and urban.
Do equitable servitudes have to be in writing?
What is the difference between real covenants and equitable servitudes?
Equitable servitudes differ from covenants in that: They are enforceable by injunction, while a real covenant is remedied by money damages. No horizontal or vertical privity is required for a servitude to run with the land. Servitudes are ownership interests in land, while real covenants are promises.
Can servitude be transferred?
A personal servitude cannot be transferred or ceded to any person except to the owner of the land being burdened by the servitude. A praedial servitude is registered against immovable property in favour of other immovable property. The real right therefore, attaches to the land itself and not a person.
How can a servitude be terminated?
A personal servitude can be cancelled by an application to the Registrar of Deeds, stating that the servitude has lapsed due to the passing of time or the death of the holder thereof or in same manner as a praedial servitude, with a notarial deed of cancellation.
What is the legal Definition of servitude?
the condition of a slave, serf, or the like; subjection to a master; slavery or bondage. 2. work imposed as punishment for crime. 3. Law.
What is the doctrine of equitable conversion?
Equitable conversion is the common law principle that holds that, once two parties have entered into an agreement for the sale of real property, the purchaser under the agreement is the owner-in-equity of the land, and the seller is deemed to hold legal title only as security for the payment of the purchase price.
Are restrictive covenants legal or equitable?
This is principally because the benefit of a restrictive covenant is not a legal but an equitable interest so it is not registrable by the Land Registry. To identify the benefitting land, it will often be necessary to review the conveyance that initially imposed the restrictions.
Can a servitude be Cancelled?
The Court explained that a servitude may be cancelled if it has been abandoned, whether expressly or tacitly and thus went on to consider whether Stein had abandoned the servitude Tacit abandonment can be inferred by the conduct of the relevant owners, ie it must be bilateral.
How do I verify a servitude claim?
By examining the title deed of a property, one would be able to ascertain whether there is a servitude registered over a property. After registration in the Deeds Office the servitude forms part of the conditions contained in the title deed or it would be in the form of an endorsement on the said title deed.
What is the difference between an equitable servitude and a covenant?
What is doctrine of equitable estoppel?
Equitable Estoppel — a judicial doctrine by which a litigant may be prevented, or “stopped,” from raising an argument or a legal defense in a lawsuit.
How do you get around restrictive covenants on property?
If there is a restrictive covenant on your property you may be able to remove it. The first step would be to negotiate with the original developer or landowner to enter into a formal agreement to remove the covenants from the title.
How legally binding are restrictive covenants?
How legally binding are restrictive covenants? Providing restrictive covenants are not void for “restraint of trade” and required to protect “legitimate business interests”, they will be viewed as legally binding. If restrictive covenants are introduced to existing employees, employer’s need to provide “consideration”.
What are the types of equitable remedies?
There are three types of equitable remedies: specific performance, injunction, and restitution.
What is the difference between estoppel and equitable estoppel?
Estoppel by Deed: This type of estoppel prevents a person from denying the truth of any fact stated in a deed they have executed. Equitable Estoppel: This form of estoppel prevents someone from taking a legal position that is contrary or inconsistent with their previous stance if doing so harms the other party.
Are restrictive covenants enforceable after 20 years?
It is important to remember though, that if a breach of a restrictive covenant has existed for 20 years or more, without any complaint by the person with the benefit of the restrictive covenant, they will no longer be able to enforce against the breach.