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Covenants, Equitable Servitudes and Restrictions 3: Who Has the Right to Enforce Covenants and Equitable Servitudes?

This lesson is designed to assist the beginning Property student in analyzing the various questions arising from one's attempting to enforce real covenants and equitable servitudes. It follows in the order of the analytical process developed in the lesson on creating covenants and addresses the question "What is required for one to be able to enforce a real covenant, equitable servitude or restriction?"

This is the third in a series of lessons. To get the maximum benefit students should complete the following lessons in order: Covenants, Equitable Servitudes and Restrictions: Creation and Covenants, Equitable Servitudes and Restrictions: Determining Their Validity and Scope.

As with many areas of the law, especially the more complicated ones, there is more than one way to analyze a problem. Students and attorneys regularly find the study of real covenants and equitable servitudes to be extremely difficult. Casebooks and hornbooks often address more than one topic at a time when dealing with topics. In contrast, to facilitate students' learning and understanding, CALI's series of lessons on real covenants and equitable servitudes provides an approach which breaks the study into more discrete, digestible components. This will not replace the traditional analysis regarding real covenants and servitudes. Rather, by mastering the CALI lessons, students will be better able to understand traditional covenants analyses.

Learning Outcomes

On completion of the lesson, the student will be able to:
1. Define who qualifies as an original promisee.
2. Identify which parties other than an original promisee might have the right to enforce a restriction.
3. Describe who qualifies as a successor to the original promisee.
4. State the criteria necessary for a successor to have the right to enforce the restriction.
5. Define a third party to be considered for enforcing a restriction.
6. Explain the criteria needed for a third party to have the right to enforce a restriction.
7. Define a reciprocal negative easement/covenant.
8. Define the following key elements as they relate to determining who has the right to enforce covenants/promises: Horizontal Privity; Intent; Touch and Concern; Vertical Privity; and Notice.

 

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