Updated on September 27, 2023
An equitable servitude is a legal term that is used, in the context of real property, to describe a non-possessory interest in land that operates much like a covenant running with the land. In other words, it operates very much like a restriction on the use of land.
Indeed, in certain situations, if restrictions on the use of property do not meet the requirements of covenants running with land, they still may be enforceable as equitable servitudes. In other words, courts can enforce promises regarding the use of land “even though the person who made the promise has transferred the land to another.” (Cebular v. Cooper Arms Homeowners Ass’n (2006) 142 Cal.App.4th 106, 122 citing Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 378.) The underlying idea behind equitable servitudes is that “a landowner’s promise to refrain from particular conduct pertaining to land creates in the beneficiary of that promise ‘an equitable interest in the land of the promisor.’” (Ibid.)
Equitable servitudes can be created either by deed, lease, or any written agreement been the landowners. (See Riley v. Bear Creek Planning Committee 17 Cal.3d. 500, 512 [deed]; see also Hudson Oil Co. v. Shortstop (1980) 111 Cal.App.3d 488, 494-495 [lease]; see also Wayt v. Patee (1928) 205 Cal. 46, 48 [contract].) Accordingly, they cannot be created orally. (See Werner v. Graham (1919) 181 Cal. 174, 184-185.) Further, in order for an equitable servitude to be recognized, “the person bound by the restrictions [must have] had notice of their existence.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375 citing Riley v. Bear Creek Planning Committee (1976) 17Cal.3d 500, 507.)
For assistance with litigating your equitable servitude claim, please contact our real estate attorneys at Schorr Law by calling (310) 954-1877, [email protected] or by filling in the contact form at the bottom of this page. We have experience dealing with equitable servitudes and understand their use and implication.