Equitable servitude is a concept in property law that restricts the use of property in a manner that benefits another property, and it is enforceable in equity. These restrictions, typically outlined in the form of contracts or agreements, are designed to ensure that the property is used or developed in a way consistent with the interests and intentions of the parties involved.
Equitable servitudes may apply to both residential and commercial properties, and they often address issues such as land use, building restrictions, and maintenance responsibilities.
How Are Equitable Servitudes Created?
Equitable servitudes are created through written agreements, typically in the form of deeds, contracts, or other legal documents, between the parties involved.
The key equitable servitude elements required include:
- A writing: The servitude must be in writing and signed by the parties involved to satisfy the statute of frauds, although some exceptions exist.
- Intent: The parties must clearly demonstrate their intention to create an equitable servitude.
- Notice: The party against whom the servitude is enforced must have actual or constructive notice of the restriction.
- Touch and concern: The servitude must relate to the use, enjoyment, or value of the property.
An implied equitable servitude occurs when the servitude is not explicitly stated in writing but arises from the surrounding circumstances, suggesting that the parties involved intended to create such a restriction.
This often occurs in the context of a common development plan, where a developer has imposed consistent restrictions on all properties within the development.
Even if a restriction is not expressly included in a deed, courts may enforce it as an implied equitable servitude if it can be proven that the restriction was part of the original development plan and the property owner had notice of the restriction.
How Are Equitable Servitudes Terminated?
Equitable servitudes can be terminated through:
- Agreement: The parties involved can mutually agree to terminate the servitude, typically through a written and signed release or modification.
- Merger: If the dominant and servient estates (i.e., the property that benefits from the servitude and the property burdened by it) become owned by the same person, the servitude may be extinguished.
- Abandonment: If the benefiting party demonstrates an intent to abandon the servitude, such as by not enforcing the restriction for a significant period, the servitude may be terminated.
- Changed circumstances: If the circumstances surrounding the properties have changed significantly since the servitude was created, making the restriction no longer necessary or reasonable, a court may terminate the servitude.
- Expiration: Some equitable servitudes have a specified duration, and they will terminate upon reaching that date or event.
What Are Some Examples of an Equitable Servitude?
Some common examples of equitable servitudes include:
- Restrictions on building height or architectural style: A property owner may be required to maintain a certain building height or adhere to a specific architectural style to preserve the aesthetic value of a neighborhood.
- Prohibitions on commercial use: In some residential communities, an equitable servitude may prevent property owners from conducting commercial activities on their property to maintain the residential character of the area.
- Maintenance requirements: A property owner may be required to maintain certain common areas, such as landscaping or shared facilities, as part of an equitable servitude within a homeowners’ association.
- Environmental restrictions: An equitable servitude may restrict certain activities, such as tree removal or alteration of natural features, to protect the environment or preserve the natural beauty of the area.
Equitable servitudes are similar to real covenants in that both involve agreements that restrict the use of property and run with the land, meaning they bind future owners of the property.
However, there are some key differences between the two.
Real covenants are enforceable at law, while equitable servitudes are enforceable in equity. In practical terms, this means that a real covenant allows for monetary damages if it is violated, whereas an equitable servitude typically allows for injunctions or other equitable remedies to enforce the restriction.
Let’s explore these differences in greater detail with examples of both real covenants and equitable servitudes.
Real Covenant
A real covenant is a written agreement between two property owners that runs with the land, meaning it binds future owners of the property as well.
When a real covenant is violated, the primary remedy is an award of monetary damages to compensate the aggrieved party for their losses.
For example, suppose a real covenant exists between two neighboring property owners, A and B. The covenant restricts A from building any structure on their property that exceeds two stories in height. A then constructs a four-story building, which obstructs B’s view and significantly decreases the value of B’s property. B sues A for violating the real covenant.
In this case, if the court finds that A violated the real covenant, it may award B monetary damages to compensate for the loss in property value and any other quantifiable harm caused by the violation. Monetary damages could cover expenses such as the cost of restoring the view, the diminished property value, or any related financial losses.
Equitable Servitude
An equitable servitude is a restriction on property use that is enforceable in equity, meaning that it is not enforced through monetary damages but rather through equitable remedies such as injunctions or specific performance.
For example, in a similar situation as the one above, A and B are neighboring property owners, and an equitable servitude exists between them, prohibiting A from building any structure exceeding two stories in height. A constructs a four-story building, which obstructs B’s view.
In this scenario, B would seek an injunction as a remedy for the violation of the equitable servitude. An injunction is a court order directing A to cease the violation, which may involve:
- Prohibiting A from completing the construction of the four-story building.
- Requiring A to modify the building to comply with the height restriction.
- In extreme cases, ordering A to demolish the non-compliant portion of the building.
In addition to an injunction, other equitable remedies may be available, such as specific performance (requiring A to take specific actions to remedy the violation) or the imposition of a constructive trust (temporarily placing the disputed property under the control of a neutral party until the issue is resolved).
However, equitable remedies typically prioritize enforcing the terms of the servitude or rectifying the violation rather than compensating the aggrieved party with monetary damages.
What Happens If Someone Violates an Equitable Servitude?
If someone violates an equitable servitude, the property owner who benefits from the servitude can seek legal remedies, usually in the form of an injunction. An injunction is a court order that requires the violating party to stop their actions or correct the violation.
In some cases, a court may also award monetary damages for losses incurred as a result of the violation. However, the primary remedy for an equitable servitude violation is generally to enforce the restriction through an injunction.
Do I Need a Lawyer to Help with My Equitable Servitude Problem?
Equitable servitude can be challenging, especially when disputes or violations arise. An experienced property attorney can provide valuable guidance and representation in such matters.
A property attorney can help you understand the terms of the servitude, assess its enforceability, negotiate modifications or termination, and advocate on your behalf in the event of a dispute.
LegalMatch is a legal matching service that connects clients with experienced attorneys in various areas of law, including property law. If you have an equitable servitude problem, LegalMatch can help you find an attorney to provide legal assistance tailored to your situation.
To get started, you can visit the LegalMatch website and provide some basic information about your case. LegalMatch will then match you with attorneys in your area who have experience in property law and equitable servitudes. You can review their profiles and compare their qualifications, experience, and fees before deciding which attorney to hire.
By using LegalMatch, you can save time and effort in finding a qualified attorney who can help you with your equitable servitude problem.
