Equitable Servitude vs Covenants and Easements

Updated on August 28, 2024

These legal instruments ensure that land use adheres to certain conditions, benefiting neighboring properties or the community at large.

Understanding equitable servitude is essential for property owners, buyers, and developers to ensure compliance and avoid potential legal disputes.

What is an Equitable Servitude?

Equitable servitude is a non-possessory interest in land that imposes certain restrictions or obligations on property owners for the benefit of other properties.

Unlike easements, which grant a right to use another’s land, equitable servitudes enforce certain conditions on the use of the property itself.

These conditions are typically established through covenants, and they bind not only the current owner but also subsequent owners of the property.

In order for an equitable servitude or restriction to be binding on subsequent landowners, the subsequent landowner must be on notice of the servitude or restriction.

Equitable Servitude Example

Consider a residential neighborhood where each property owner is subject to a covenant prohibiting the construction of commercial buildings. In modern times, these types of covenants are usually recorded as Covenants, Codes and Restrictions (CC&Rs) against the property and the neighborhood as a whole.

This covenant ensures that the neighborhood remains residential, maintaining its character and property values. If a new owner buys a property in this neighborhood, they are bound by the equitable servitude to refrain from constructing commercial buildings, even if the covenant was established long before they purchased the property.

But, again the new owner must be put on notice of the covenant by a valid recording or otherwise being specifically told about the covenant.

Equitable Servitudes vs. Covenants: Key Differences

1. Nature and Creation:
   • Covenants are formal agreements or promises concerning the use of land, typically included in the property deed.
   • Equitable Servitudes, while similar to covenants, do not always need to be written in the deed.
2. Enforcement:
   • Covenants can be enforced by monetary damages if breached, as they are considered legal obligations tied to the land.
   • Equitable Servitudes are typically enforced through equitable remedies, such as injunctions, meaning the court can order a party to do or not do something rather than simply awarding damages.
3. Privity Requirements:
   • Covenants require both horizontal and vertical privity to run with the land.
   • Equitable Servitudes do not require privity.
4. Scope and Flexibility:
   • Equitable Servitudes are broader than covenants since they can apply even when a covenant might fail due to lack of privity or other technical issues.
   • Covenants are generally more rigid due to their strict legal requirements.

Equitable Servitude FAQs

How is Equitable Servitude Created?

Equitable servitude is typically created through covenants included in property deeds or agreements between property owners. These covenants must meet certain legal requirements:

• Intent: The original parties must intend for the covenant to bind future owners.
• Touch and Concern the Land: The covenant must relate to the use or enjoyment of the land.
• Notice: Subsequent owners must have actual or constructive notice of the covenant.

How Does Equitable Servitude Differ from Easements?

While both equitable servitude and easements involve property rights, they serve different purposes:

• Easements: Grant a right to use another’s land for a specific purpose (e.g., a right-of-way).
• Equitable Servitude: Imposes restrictions or obligations on the use of the land itself (e.g., building restrictions).

Can Equitable Servitude Be Enforced?

Yes, equitable servitudes can be enforced through legal action. If a property owner violates the terms of an equitable servitude, affected parties can seek an injunction to stop the violation or sue for damages. Enforcement typically requires proving that the covenant meets the legal requirements and that the owner had notice of it. An equitable servitude, if recorded and proven to exist, can often be enforced through a breach of contract lawsuit.

Can Equitable Servitude Be Terminated?

• Equitable servitudes can be terminated under certain conditions:
  Release: All parties benefiting from the servitude agree to release it.
• Merger: The properties subject to the servitude come under common ownership.
• Changed Conditions: Significant changes in the surrounding area make the servitude obsolete or unenforceable.
• Abandonment: The beneficiaries of the servitude demonstrate an intent to abandon it through their actions.

Addressing Equitable Servitude Issues

Dealing with equitable servitude involves several steps, whether creating, modifying, or enforcing such covenants:

Creating Equitable Servitude

• Drafting Covenants: Clearly outline the restrictions or obligations in the property deed or agreement.
• Recording: Record the covenant with the county recorder’s office to ensure it becomes a matter of public record.
• Notification: Ensure all current and future property owners are aware of the covenant and its implications.

Modifying or Terminating Equitable Servitude

• Negotiation: Engage in discussions with all affected parties to agree on modifications or termination.
• Legal Action: File a lawsuit if there is a dispute over the modification or termination of the servitude.
• Public Records: Update public records to reflect any changes to the servitude.

Enforcing Equitable Servitude

• Monitoring Compliance: Regularly check that property owners comply with the covenant.
• Legal Remedies: Seek an injunction or damages through the court if there is a breach.
• Alternative Dispute Resolution: Consider mediation or arbitration to resolve disputes without litigation.

How a Licensed Attorney Can Help

Navigating the complexities of equitable servitude requires expertise in property law. A licensed attorney specializing in real estate can provide invaluable assistance by:

• Drafting and Reviewing Covenants: Ensuring that covenants are clearly written, legally sound, and enforceable.
• Conducting Title Searches: Identifying existing equitable servitudes and advising on their implications for property transactions.
• Resolving Disputes: Representing clients in negotiations or court proceedings to enforce or challenge servitudes.
• Advising on Compliance: Helping property owners understand their obligations and avoid potential violations.

Schorr Law is Here to Help

Choosing a knowledgeable and experienced attorney specializing in real estate can provide peace of mind when dealing with and understanding equitable servitude. The Los Angeles based real estate attorneys at Schorr Law are well-versed in litigating matters in California related to equitable servitudes, helping clients navigate these complex issues favorably. By seeking professional assistance, you can ensure compliance with covenants, protect your property rights, and achieve successful real estate transactions. Call our office today at 310-954-1877 or click here to fill out our contact form.