PastPaperHero | Rights in real property

Learning Outcomes

This article examines restrictive covenants affecting land, including:

Distinguishing real covenants from equitable servitudes by their elements, privity requirements, available remedies, and how each runs with the land.
Identifying the requirements for creating enforceable covenants, including writing, intent, touch and concern, and, where relevant, horizontal and vertical privity.
Analyzing when the burden and/or benefit of a covenant runs to successors and how notice (actual, record, and inquiry) affects enforceability.
Applying the doctrine of implied reciprocal negative servitudes to common-scheme subdivision fact patterns and recognizing its limits on the MBE.
Determining which parties hold the benefit of a restriction, who is bound by the burden, and when outsiders to a subdivision lack enforcement rights.
Integrating covenant and servitude questions with recording-act issues, adverse possession, and landlord–tenant or easement doctrines in exam-style scenarios.
Evaluating the primary methods for modifying or terminating covenants and servitudes, including merger, release, abandonment, acquiescence, estoppel, and changed conditions.
Selecting the correct remedy—damages or injunction—based on whether the facts support real-covenant or equitable-servitude analysis.

MBE Syllabus

For the MBE, you are required to understand how promises relating to land use are created and enforced against successors in interest, with a focus on the following syllabus points:

Identify the requirements for the creation of a real covenant (writing, intent, touch and concern, privity).
Distinguish between horizontal and vertical privity and understand “strict” versus “relaxed” vertical privity.
Analyze the requirements for the burden of a real covenant to run with the land.
Analyze the requirements for the benefit of a real covenant to run with the land.
Identify the requirements for the creation and enforcement of an equitable servitude (writing or common scheme, intent, touch and concern, notice).
Explain how equitable servitudes are enforced (injunction) and how real covenants are enforced (damages).
Recognize methods for terminating covenants and servitudes (e.g., merger, release, abandonment, acquiescence, changed conditions, estoppel, condemnation).
Integrate covenant and servitude issues with recording statutes and notice (actual, record, inquiry).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

For the burden of a real covenant to run with the land and bind a successor owner, which type of privity is typically required between the original covenanting parties?
1. Relaxed vertical privity
2. Strict vertical privity
3. Horizontal privity
4. Mutual privity
Developer subdivides a large tract into 50 lots. The first 40 deeds contain an express covenant restricting use to single-family residential purposes and stating the restriction is for the benefit of all lots in the subdivision. The remaining 10 deeds, including Lot 45 sold to Buyer, contain no express restriction. Buyer, aware of the uniform residential nature of the neighborhood, plans to build a small convenience store on Lot 45. Neighbor, owner of Lot 5, seeks to enjoin Buyer. Which doctrine is most likely to allow Neighbor to enforce the restriction against Buyer?
1. Real covenant
2. Easement by implication
3. Equitable servitude based on a common scheme
4. Estoppel
A promises B, a neighboring landowner, in a recorded writing, that A will not build any structure exceeding two stories on A's property. A later sells the property to C, who has actual knowledge of the promise. B sells his property to D. If C begins construction of a three-story building, can D enforce the promise against C as a real covenant?
1. Yes, because C had actual notice.
2. Yes, if the benefit and burden touch and concern the respective lands and vertical privity exists.
3. No, because horizontal privity was lacking between A and B.
4. No, because D was not an original party to the covenant.
Which of the following is generally required for the enforcement of an equitable servitude against a subsequent purchaser but NOT necessarily for the burden of a real covenant to run at law?
1. Intent for the restriction to run
2. The restriction must touch and concern the land
3. Notice of the restriction
4. Horizontal privity between the original parties

Introduction

Restrictive covenants are promises made between landowners that restrict the use of land. These promises can be enforced by successors in interest if certain requirements are met, allowing the restrictions to "run with the land." There are two primary types of restrictive covenants recognized in property law: real covenants and equitable servitudes. While similar in purpose—controlling land use—they differ in their requirements for creation and enforcement, and most significantly, in the remedy available for breach. Real covenants are typically enforced by an award of money damages, whereas equitable servitudes are enforced by injunction.

Understanding the distinction and the specific requirements for the benefit and burden of each type of covenant to run to subsequent landowners is critical for the MBE. Exam questions often combine covenant issues with recording statutes, notice, adverse possession, or landlord–tenant doctrines, so it is important to keep the elements clear and apply them methodically.

Key Term: Restrictive Covenant
A promise relating to the use of land that can bind successors in interest if certain conditions (such as intent, touch and concern, and privity or notice) are satisfied.

Key Term: Real Covenant
A restrictive covenant enforceable at law by an award of damages. When the required elements are met, the benefit and/or burden of the promise “runs with the land” to bind or benefit successors.

Key Term: Equitable Servitude
A promise regarding land use enforceable in equity by injunction against successors who have notice. Privity of estate is not required for enforcement as an equitable servitude.

Key Term: Benefit (of a Covenant)
The right to enforce the covenant—i.e., to demand that the burdened party comply with the restriction or pay damages.

Key Term: Burden (of a Covenant)
The obligation imposed by the covenant—i.e., the restriction that limits what the owner of the burdened land can do.

Key Term: Running with the Land
The situation in which the benefit or burden of a covenant automatically passes to successors in interest to the land, so that later owners may enforce or are bound by the promise.

Restrictive covenants are conceptually distinct from defeasible fees. A defeasible fee (e.g., “to A so long as the land is used for church purposes”) affects title and is enforced by forfeiture of the estate, not by an action on a covenant. A restrictive covenant, by contrast, leaves title intact but regulates use and is enforced by damages or injunction.

They are also distinct from easements. An easement gives a non-owner a right to use land (e.g., a right-of-way), whereas a restrictive covenant typically limits how the owner may use their own land. On the MBE, easement and covenant doctrines are sometimes intertwined, so keep the categories separate.

Key Term: Touch and Concern
The requirement that a covenant relate to the land itself—affecting the use, value, or enjoyment of the land as land, rather than imposing a purely personal obligation unrelated to the property.

Key Term: Privity of Estate
A property relationship between parties based on successive or mutual interests in the same land—such as landlord–tenant or grantor–grantee—that may be required for real covenants to run at law.

Real Covenants

A real covenant is a written promise concerning the use of land that runs with the land at law. This means that subsequent owners may enforce it (benefit runs) or be burdened by it (burden runs) if the elements are satisfied.

Between the original covenanting parties, enforcement is largely a contract issue: if there is a valid written agreement, they may sue each other for breach. The special rules below matter when a successor—someone who later acquires an interest in the land—is either trying to enforce the covenant or being sued under it.

Because the MBE is heavily focused on successors, you must separately analyze:

Whether the burden of the covenant runs (so a successor on the burdened land can be sued); and
Whether the benefit of the covenant runs (so a successor on the benefited land can enforce).

Key Term: Horizontal Privity
The relationship between the original parties who created the covenant, requiring that they share some interest in land apart from the covenant itself—typically grantor–grantee, landlord–tenant, or mortgagor–mortgagee—at the time the covenant is made.

Key Term: Vertical Privity
The relationship between an original party to the covenant and that party’s successor in interest. It depends on what estate or interest the successor holds compared to the original covenantor.

Creation Between the Original Parties

To create a real covenant enforceable between the original parties:

The covenant must satisfy the Statute of Frauds (a signed writing describing the land and the promise).
The parties must intend to be bound.
Consideration is typically present in the context of a deed or other bargained-for exchange.

Between original parties, the “touch and concern” requirement and privity concepts rarely affect enforceability; they become important when you move to successors.

Requirements for the Burden to Run

For the burden of a real covenant to run with the land and bind a successor owner of the burdened property, the following elements are generally required:

Writing: The original covenant must be in writing, satisfying the Statute of Frauds.
Intent: The original covenanting parties must have intended the burden to run with the land and bind successors. This intent is often found in the language of the deed (e.g., “for grantor, her heirs and assigns” or “this covenant shall run with the land”).
Touch and Concern: The substance of the covenant must touch and concern the land. This means the covenant must affect the parties as landowners, relating to the use, value, or enjoyment of the land itself—rather than being purely personal.
- Negative covenants (promises to refrain from doing something, such as “no industrial use” or “no building higher than three stories”) almost always satisfy this requirement because they limit how land can be used.
- Affirmative covenants (promises to do something, such as “to maintain a boundary fence” or “to pay homeowners’ association dues”) generally touch and concern when performance relates to the property. Covenants to pay for maintenance of roads, common amenities, or shared facilities typically qualify.
Horizontal Privity: For the burden to run at law, most jurisdictions require horizontal privity between the original covenanting parties. This means the covenant must have been created as part of a transfer of an interest in land between them (or in the context of a landlord–tenant or mortgagor–mortgagee relationship).
- Horizontal privity is usually satisfied when the covenant is contained in the same deed that conveys a fee, lease, or other property interest from one party to the other.
- It is not satisfied when two unrelated neighbors simply sign an agreement without simultaneously transferring an interest in land between them.
Vertical Privity (Strict): For the burden to run, the successor must have acquired the entire durational estate held by the original covenantor. This is sometimes called “strict vertical privity.”
- If A (fee simple) covenants with B, and then A transfers fee simple to C, strict vertical privity exists between A and C.
- If A leases to C (retaining a reversion), C does not have A’s entire estate; strict vertical privity between A and C is absent. C might not be bound at law by the covenant’s burden (though an equitable servitude may still bind C).
Notice: The successor owner of the burdened land must have had notice of the covenant when they acquired the land. This requirement stems from recording statutes and basic fairness. Notice can be:
- Actual notice: The successor actually knows about the covenant.
- Record (constructive) notice: The covenant appears in a properly recorded instrument in the successor’s chain of title.
- Inquiry notice: Facts observed on the land or in the neighborhood would cause a reasonable buyer to investigate further and discover the covenant (for example, uniformly residential use in a subdivision).

Key Term: Notice
Information sufficient to bind a purchaser to an existing property interest or restriction. Notice can be actual, record (constructive), or inquiry.

Key Term: Actual Notice
Knowledge that a purchaser actually possesses, whether obtained from documents, conversations, or other direct sources.

Key Term: Record (Constructive) Notice
Notice imputed to purchasers from properly recorded instruments in the property’s chain of title, regardless of whether the purchaser actually reads them.

Key Term: Inquiry Notice
Notice imputed when visible conditions or other facts would prompt a reasonable person to investigate further; the purchaser is charged with knowledge of what a reasonable inquiry would reveal.

On the MBE, when assessing whether the burden runs, methodically check each element: writing, intent, touch and concern, horizontal privity, strict vertical privity, and notice.

Exam Tip: A common way the MBE defeats the burden of a real covenant is by eliminating horizontal privity (e.g., two neighboring owners sign an agreement with no concurrent transfer of land). This does not prevent equitable enforcement as an equitable servitude if notice is present.

Requirements for the Benefit to Run

For the benefit of a real covenant to run with the land and be enforceable by a successor owner of the benefited property, the requirements are generally less stringent:

Writing: The original covenant must be in writing.
Intent: The original parties must have intended the benefit to run with the land. This intent may be explicit (e.g., “for the benefit of Lot 1 and its successors”) or inferred from the structure of the development.
Touch and Concern: The benefit must touch and concern the land owned by the covenantee, typically by enhancing its value, use, or enjoyment.
Vertical Privity (Relaxed): The successor must have acquired some possessory interest in the benefited land previously owned by the original covenantee. Unlike the burden, strict vertical privity is not required; an assignment of a lesser estate (e.g., a life estate or leasehold) may be enough for the benefit to run.

Horizontal privity and notice are not required for the benefit of a real covenant to run at law.

Who Can Enforce Real Covenants

Only someone who holds the benefit of the covenant can enforce it. Typically this is:

The current owner of a specifically identified benefited parcel; or
In a subdivision, any lot owner if the covenants were clearly intended to be reciprocal for the benefit of all lots.

Neighbors who own land outside the common scheme, or who are not within the class of intended beneficiaries, generally cannot enforce subdivision restrictions as real covenants or equitable servitudes.

Worked Example 1.1

Alex owns Lot 1 and Betty owns adjacent Lot 2. They enter into a written agreement, recorded properly, where Alex promises Betty, "for herself, her heirs and assigns," that Alex will maintain a fence between their properties. Alex sells Lot 1 to Charles. Betty sells Lot 2 to David. Charles refuses to maintain the fence. Can David enforce the covenant against Charles at law?

Answer:
Analyze whether both the burden and the benefit run.

Burden (Alex → Charles):

Writing: Yes.

Intent: Yes (“heirs and assigns”).

Touch and concern: Yes (maintaining a boundary fence relates to land use).

Horizontal privity: No; Alex and Betty were simply neighboring owners with no simultaneous transfer of an interest in land.

Vertical privity: Yes; Charles took Alex’s entire interest (fee simple).

Notice: Yes; the agreement was recorded. Because horizontal privity is missing, the burden does not run at law in most jurisdictions.

Benefit (Betty → David):

Writing, intent, and touch and concern are satisfied.

Vertical privity: Yes; David has Betty’s former interest in Lot 2 (relaxed privity is enough).

The benefit runs, but the burden does not. David therefore cannot obtain damages against Charles as a matter of real covenant law. However, because there is writing, intent, touch and concern, and notice, the promise may be enforceable as an equitable servitude, allowing David to seek an injunction in equity.

Worked Example 1.2

A businesswoman owned two adjoining tracts: Tract A (improved with a commercial building) and Tract B (vacant land fronting a river). She conveyed Tract B to G by a signed warranty deed. The deed stated that as owner of Tract B, G “for himself, his heirs and assigns, covenants that no building shall ever be erected on Tract B, so that the view from Tract A to the river is preserved.” G did not sign the deed but promptly recorded it. Years later, the businesswoman sold Tract A to Buyer. G later died, devising Tract B to his cousin, C. C, with record notice of the deed, begins constructing a building on Tract B. Buyer sues to enjoin construction.

Answer:
Buyer will likely succeed in obtaining an injunction.

There is a written promise in a deed satisfying the Statute of Frauds. A grantor-signed deed is sufficient to create a covenant binding the grantee; the grantee’s separate signature is not required.

The restriction touches and concerns the land: it burdens Tract B by limiting construction and benefits Tract A by preserving the river view.

The deed language (“heirs and assigns”) and the nature of the promise show intent for the promise to bind successors and benefit successors.

C is G’s successor and has record notice because the deed was recorded.

Even if horizontal privity or strict vertical privity were disputed for purposes of a real covenant, Buyer is seeking injunctive relief, so the promise is enforceable as an equitable servitude, for which privity is not required. Thus, C is bound, and Buyer can enjoin construction.

Exam Warning

Pay close attention to the privity requirements:

The lack of horizontal privity prevents the burden of a real covenant from running at law, but does not prevent the benefit from running.
For the burden to run, strict vertical privity is also needed, while only relaxed vertical privity is needed for the benefit.

When the bar examiners want the covenant to be enforceable despite a defect in privity, they often switch the remedy to an injunction, allowing enforcement as an equitable servitude.

Additional Example: Who Can Enforce

Consider a 20-lot subdivision created from land originally owned by Owner. Each deed from Owner to a lot buyer contains a covenant that “no multi-family dwellings shall be built” and states that the covenant is “for the benefit of all lots in Owner’s subdivision.” A neighboring landowner who owns land outside the subdivision complains about a homeowner’s plan to add a rental unit and seeks to enforce the restriction.

The neighbor cannot enforce the covenant. The neighbor is neither within the class of intended beneficiaries nor within the subdivision itself. Only the lots within the common plan or those expressly given the benefit can enforce the covenant or equitable servitude.

Equitable Servitudes

An equitable servitude is a covenant concerning land use that is enforceable in equity by injunction against subsequent owners who have notice of the covenant. It is similar to a real covenant but has requirements that are easier to meet, primarily because privity of estate is not required for the burden to run.

Key Term: Implied Reciprocal Negative Servitude
Also called an implied equitable servitude; a negative restriction on use (e.g., residential-only) that is implied in equity against all lots in a common scheme development, even if not expressly mentioned in every deed, when there is a general plan and the purchaser has notice.

Key Term: Common Scheme (or Plan)
A general plan for developing a tract (usually a subdivision) under which all parcels are intended to be subject to the same or compatible restrictions, shown by recorded plats, uniform deed restrictions, advertising, or the physical development of the area.

Requirements for Enforcement

For an equitable servitude to be enforceable against a successor owner (i.e., for the burden to run in equity), the following elements are generally required:

Writing OR Common Scheme:
- Typically, the promise is contained in a writing satisfying the Statute of Frauds, such as a deed or recorded declaration of restrictions.
- Exception — Implied Reciprocal Negative Servitudes: In certain subdivision cases, reciprocal negative covenants restricting land use may be implied against lots whose deeds lack the express covenant if:
  - There was a common scheme of development when sales began; and
  - The purchaser of the “unrestricted” lot had notice of the scheme.
Intent: The original parties must have intended the restriction to be enforceable by and against successors. This is often shown by language such as “this restriction shall run with the land” or by a recorded declaration for the subdivision.
Touch and Concern: The restriction must touch and concern the land—typically by limiting uses (e.g., residential-only, height limits, setback requirements) that affect value and enjoyment.
Notice: The successor owner of the burdened land must have had notice (actual, record, or inquiry) of the servitude when they acquired the land.
- Actual notice: For example, the buyer was told about the restrictions at closing.
- Record notice: The restriction appears in a recorded document within the buyer’s chain of title or in a recorded subdivision declaration.
- Inquiry notice: The uniform character of the neighborhood (e.g., all single-family houses, similar setback lines, no visible commercial use) alerts a reasonable buyer that restrictions are likely in place.

Privity is not required for enforcement of equitable servitudes. This is the key reason servitudes are often enforceable even when the real covenant burden fails to run.

Implied Reciprocal Negative Servitudes

This doctrine allows restrictions found in the deeds of early buyers in a subdivision to be enforced against a later buyer whose deed does not contain the restriction, provided:

Common Scheme at Time of Sale: There must have been a general plan when the subdivision began. Evidence can include:
- A recorded plat showing uniform restrictions.
- Earlier deeds from the common grantor containing similar restrictions.
- Advertising and sales materials describing the subdivision as, for example, a residential community.
- A consistent pattern of use (e.g., all lots are used for single-family homes).
Reciprocity: The restriction is intended to benefit all lots in the subdivision, so each lot is both benefited and burdened.
Notice: The later purchaser had actual, record, or inquiry notice of the scheme.

This doctrine applies only to negative covenants (promises not to do something, such as “no commercial use”), not to affirmative duties.

Worked Example 1.3

Developer subdivided a tract into 10 lots (Lots 1–10). The deeds for Lots 1–8 expressly restricted use to single-family residences and stated the restrictions were for the mutual benefit of all lot owners. Developer sold Lot 9 to Buyer via a deed with no restrictions. The neighborhood is uniformly residential. Buyer plans to open a bookstore. Owner of Lot 2 seeks an injunction. Will Owner likely succeed?

Answer:
Owner will likely succeed under the doctrine of implied reciprocal negative servitudes.

Common Scheme: The restrictions in the first eight deeds and the express statement that they benefit all lots indicate a common plan for residential-only use. The scheme existed when sales began.

Intent: The express language in the restricted deeds shows intent that all subdivision lots be similarly restricted.

Touch and Concern: The residential-use restriction clearly relates to land use and neighborhood character.

Notice: Buyer had at least inquiry notice (the uniform residential character of the subdivision) and likely record notice as well (the earlier recorded deeds from the common developer).

Even though Buyer’s deed lacks a written restriction, the equitable servitude is implied and enforceable by injunction. Privity is not required.

Additional Example: Limits of the Common-Scheme Doctrine

Suppose Owner develops a tract into 50 lots. The first 30 deeds contain uniform residential-use restrictions “for the benefit of all lots in Owner’s subdivision.” The last 20 deeds, including Lot 45, contain no restrictions. Buyer of Lot 45 plans to build a multi-family apartment building. Owners of Lots 1–10 seek to enforce the restriction.

If the apartment building is still a residential use (and the restriction merely specifies “residential”), the proposed construction is consistent with the covenant’s terms. A restriction to “residential use” alone does not bar multi-family dwellings. If the covenant had specified “single-family residences” and there was a clear common scheme, implied reciprocal negative servitudes would likely allow enforcement.

This sort of detail often appears on the MBE: a challenger (such as a neighbor from outside the subdivision or a neighbor misreading the covenant’s text) seeks to enforce a restriction that does not actually prohibit the proposed use.

Enforcement and Remedies

Real covenants are enforced by money damages for breach.
Equitable servitudes are enforced by injunctive relief (or specific performance of the duty).

On exams, if the problem indicates the plaintiff seeks an injunction, you should analyze the issue under equitable servitude principles (writing/common scheme, intent, touch and concern, notice, no privity requirement). If the plaintiff is seeking damages, analyze the problem as a real covenant (and pay close attention to privity).

In many fact patterns, both analyses are relevant. It is common for:

The real covenant burden to fail (due to lack of horizontal privity or strict vertical privity), but
The equitable servitude to succeed (because privity is not required and notice exists).

Defenses to Enforcement in Equity

Even where an equitable servitude’s elements are met, enforcement may be denied under equitable defenses such as:

Acquiescence: The benefiting party knowingly allows substantial violations without objection (e.g., many lot owners have built structures violating the setback line).
Unclean hands: The party seeking enforcement is itself violating a similar covenant.
Laches: There is an unreasonable delay in enforcement that prejudices the defendant.
Estoppel: The benefiting party indicated that the covenant would not be enforced, and the burdened party relied on that assurance to their detriment (e.g., by investing in construction).

These defenses are most often relevant where a plaintiff seeks an injunction to enforce a servitude in an older neighborhood with mixed compliance.

Termination of Covenants and Servitudes

Real covenants and equitable servitudes can last indefinitely, but they can be terminated or rendered unenforceable by various doctrines. Many of these parallel termination rules for easements.

Merger

If the benefited and burdened estates come into the ownership of the same person in the same right, the covenant or servitude is extinguished by merger. You cannot have an enforceable promise from yourself to yourself.

Once merger occurs, the covenant generally does not revive when the unified estate is later split again, unless a new covenant is created.

Release

A written release, complying with the Statute of Frauds, from the holder(s) of the benefit terminates the covenant or servitude.

For example, in a subdivision, if an HOA holds the right to enforce restrictions, an authorized written release by the HOA can extinguish or modify those restrictions (subject to governing documents and state law).

Acquiescence

If the benefited party knowingly stands by while the burdened owner repeatedly violates the restriction, a court may find that the benefited party has acquiesced and is estopped from later enforcing the restriction against those violations.

Acquiescence usually requires a pattern of tolerated violations, not a single instance.

Abandonment

Abandonment occurs when the benefited party, through conduct, manifests an intent to relinquish the right to enforce.

Mere nonuse is not enough.
Active conduct that is inconsistent with enforcement—such as many benefited owners openly violating the same restriction—can show abandonment.

Example: A subdivision has a “residential-only” covenant, but over time many lot owners convert houses to offices and the HOA does nothing. Courts may find that the restriction has been abandoned.

Unclean Hands

A court may refuse to enforce a servitude if the party seeking enforcement has violated a similar restriction on its own land or otherwise engaged in improper conduct relating to the servitude.

Example: A homeowner who violates the setback requirement on their own lot may be denied an injunction preventing a neighbor’s similar setback violation.

Laches

Laches bars enforcement when:

The plaintiff unreasonably delays in bringing an action; and
The delay causes prejudice to the defendant (e.g., the defendant has substantially completed construction in reliance on silence).

Laches is equitable and does not depend on statutes of limitations, although courts may consider analogous limitation periods.

Estoppel

If the benefited party represents that they will not enforce the covenant (or that it is no longer in effect), and the burdened party reasonably and detrimentally relies on that representation (e.g., spends significant sums in construction), the benefiting party may be estopped from enforcing the restriction.

Changed Conditions

The doctrine of changed conditions limits enforcement of covenants in neighborhoods that have fundamentally changed.

Enforcement may be denied when changes in the surrounding area are so pervasive that the original purpose of the restriction can no longer be accomplished.
The change must generally affect the entire area benefited by the covenant, not just a few lots at the edge.

Example: A subdivision covenant prohibits commercial use. Over decades, the entire surrounding area—including within the subdivision—gradually becomes commercial, and nearly all lots are used for businesses. Enforcing a residential-only restriction may no longer serve any real purpose and may be denied under changed conditions.

By contrast, if only a few nearby parcels outside the subdivision have changed, or a small number of internal violations exist, courts usually still enforce the restriction.

Key Term: Changed Conditions
A doctrine under which courts refuse to enforce a covenant or servitude when the character of the neighborhood has changed so fundamentally that the covenant’s original purpose is impossible or highly impractical to achieve.

Zoning changes alone do not automatically terminate private covenants, but they can be evidence of changed conditions. A zoning variance or change that permits commercial use does not eliminate a private restrictive covenant limiting use to residential purposes; the private covenant can still be enforced.

Condemnation and Destruction

Condemnation of the burdened property by eminent domain generally terminates the covenant or servitude, with compensation allocated among parties according to their interests.

Destruction of structures on the land does not automatically terminate covenants, but it may affect their value and practical enforcement.

Adverse Possession

When someone acquires title by adverse possession:

If the adverse possessor’s use violates a recorded restrictive covenant for the entire limitations period, the possessor may take the land free of the covenant. The adverse use is inconsistent with the servitude, and the owner’s failure to enforce operates like abandonment as to that parcel.
If the adverse possessor’s use complies with the covenant (e.g., uses land only for residential purposes where there is a residential-use covenant), the possessor takes title subject to the covenant, which remains enforceable (at least in equity).

This detail occasionally appears in more advanced MBE questions, especially those combining adverse possession and covenants.

Statutory and Association-Based Modifications

In condominiums, cooperatives, and planned communities, restrictive covenants are often contained in recorded declarations and enforced by associations. Modern statutes and association documents often provide mechanisms for:

Amending or repealing restrictions by supermajority vote;
Automatically expiring covenants after a certain time unless renewed; or
Modifying restrictions to comply with anti-discrimination or fair housing laws.

Although detailed association law is rarely tested on the MBE, you should recognize that many “HOA rules” are simply equitable servitudes running with the units.

Revision Tip

Remember the key difference in remedies: Damages for real covenants, injunction for equitable servitudes. The requirements for equitable servitudes are generally easier to meet (no privity needed; notice is essential).

If damages are sought, analyze as a real covenant and be strict about horizontal and vertical privity. If an injunction is sought, analyze as an equitable servitude, focusing on intent, touch and concern, and notice, as well as any equitable defenses (acquiescence, laches, unclean hands, estoppel, changed conditions).

Summary

Restrictive covenants control land use through promises that can bind subsequent owners.

A real covenant is a written promise about land use that, when its elements are satisfied, runs with the land at law. The burden runs if there is writing, intent, touch and concern, horizontal privity, strict vertical privity, and notice. The benefit runs with writing, intent, touch and concern, and relaxed vertical privity (no horizontal privity or notice requirement). The remedy is damages.
An equitable servitude is a promise about land use enforceable in equity, usually by injunction. It requires a writing (or, in common-scheme subdivisions, a common plan implying reciprocal negative servitudes), intent, touch and concern, and notice. Privity is not required. This makes equitable servitudes especially powerful when real covenant elements—particularly privity—are missing.
Implied reciprocal negative servitudes allow restrictions in a common-scheme subdivision to be enforced against lots whose deeds lack explicit restrictions, as long as there is a general plan at the time of development and the purchaser had notice. Only those within the benefited group (typically subdivision lot owners) can enforce such servitudes.
Covenants and servitudes can be terminated or limited by merger, release, acquiescence, abandonment, unclean hands, laches, estoppel, changed conditions, condemnation, and sometimes by adverse possession or statute.

On MBE questions, carefully identify:

The type of promise (negative vs affirmative; covenant vs defeasible fee vs easement);
The relief sought (damages vs injunction);
The status of the parties (original parties vs successors; insiders vs outsiders to a subdivision); and
The presence or absence of key elements (intent, touch and concern, privity, and notice).

Applying these systematically will guide you to the correct result.

Key Point Checklist

This article has covered the following key knowledge points:

Distinction between Real Covenants (damages) and Equitable Servitudes (injunction).
Requirements for the burden of a real covenant to run: Writing, Intent, Touch and Concern, Horizontal Privity, Strict Vertical Privity, Notice.
Requirements for the benefit of a real covenant to run: Writing, Intent, Touch and Concern, Relaxed Vertical Privity.
Requirements for an equitable servitude to run: Writing (or Common Scheme), Intent, Touch and Concern, Notice (NO privity needed).
Implied Reciprocal Negative Servitudes arise from a common scheme and require notice; they apply only to negative restrictions.
Only those holding the benefit of a covenant (typically owners of benefited lots) can enforce it; outsiders to a subdivision generally cannot.
Methods of termination include Merger, Release, Acquiescence, Abandonment, Unclean Hands, Laches, Estoppel, Changed Conditions, Condemnation, and sometimes Adverse Possession.
Horizontal privity relates to the original covenanting parties; Vertical privity relates to successors to those parties’ estates.
Notice (actual, record, inquiry) is essential for binding subsequent purchasers in both real covenant (burden) and equitable servitude analysis.
Zoning changes do not automatically terminate private covenants, but may support a changed-conditions argument.

Key Terms and Concepts

Restrictive Covenant
Real Covenant
Equitable Servitude
Benefit (of a Covenant)
Burden (of a Covenant)
Running with the Land
Touch and Concern
Privity of Estate
Horizontal Privity
Vertical Privity
Notice
Actual Notice
Record (Constructive) Notice
Inquiry Notice
Common Scheme (or Plan)
Implied Reciprocal Negative Servitude
Changed Conditions

Rights in real property - Restrictive covenants