Equitable servitude

Encyclopedia : E : EQ : EQU : Equitable servitude

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Property law
Part of the common law series
Acquisition of property
Gift  · Adverse possession  · Deed
Lost, mislaid, and abandoned property
Bailment  · Licence
Estates in land
Allodial title  · Fee simple
Life estate  · Fee tail  · Future interest
Concurrent estate  · Leasehold estate
Condominiums
Conveyancing of interests in land
Bona fide purchaser  · Torrens title
Estoppel by deed  · Quitclaim deed
Mortgage  · Equitable conversion
Action to quiet title
Limiting control over future use
Restraint on alienation
Rule against perpetuities
Rule in Shelley's Case
Doctrine of worthier title
Nonpossessory interest in land
Easement  · Profit (real estate)>Profit
Covenant running with the land
Equitable servitude
Related topics
Fixtures  · Waste (law)>Waste  · Partition
Riparian water rights
Lateral and subjacent support
Assignment  · Nemo dat
Other areas of the common law
Contract law  · Tort law
Wills and trusts
Criminal Law  · Evidence

An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land, requiring the landowner to maintain certain practices with respect to the land (e.g., building a fence), or prohibiting certain practices (e.g., using heavy machinery). Equitable servitudes must be created by a writing, unless it is a negative equitable servitude (one that prohibits certain behavior) which may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, including Massachusetts.

Because an equitable servitude is, as the name suggests, a creature of equity, all of the common equity defences apply against it:

• Unclean hands - a landowner will not be able to prevent a neighbor from engaging in a prohibited activity that the landowner himself has engaged in.
• Acquiescence - a landowner will not be able to prevent one neighbor from engaging in a prohibited activity if that landowner did not complain when another neighbor engaged in the same activity.
• Estoppel - a landowner will not be able to prevent a neighbor from engaging in a prohibited activity if the landowner acted in a way that led his neighbors to rely on the belief that he would not complain of this activity.
• Laches - a landowner will not be able to bring suit against a violator unless he does so within a reasonable time.

Furthermore, if the character of the neighborhood changes sufficiently, through changes in zoning or through nonenforcement of the equitable servitude in one part of the neighborhood (called an entering wedge) then the equitable servitude may be deemed unenforceable as to the entire neighborhood.

 

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