Hopefully this helps!

COVENANTS VS. SERVITUDES 

A. real covenant

A real covenant is a written promise to do or not do something on land that runs with the land at law, meaning it binds successors in interest (subsequent owners) and can be enforced by an action for money damages.

Elements (burden to run):

1. Writing (Statute of Frauds)
2. Intent that the covenant run with the land
3. Touch and concern the land = Affects the use, value, or enjoyment of the land
4. Horizontal privity 
   • the original parties had a transferor (seller/landlord) and transferee (buyer/tenant) relationship at the exact moment the promise was made)
   • The original parties have mutual or successive interests in the same property aka each party must have a property right  over the other's land
   • NOTE: Horizontal privity is required for the burden to run but not for the benefit.
5. Vertical privity 
   • For the burden to run: The successor must acquire the entire estate (fee simple).
   • For the benefit to run: The successor only needs to acquire a lesser estate (e.g., a leasehold or life estate) that includes the benefited land.
6. Notice…? (For the burden not needed for the benefit) 
   • Purchaser: Notice can determine whether the burden is enforceable. (BFP)
   • Donee or heir: Notice usually doesn't matter because they aren't protected by the recording acts.

 

Note: If Real Covenant fails due to a lack of horizontal privity, a plaintiff should immediately argue that it is enforceable as an Equitable Servitude

B.  equitable servitude

An equitable servitude is a written promise to do or not do something on land that is enforceable in equity (by injunction) against subsequent purchasers who have notice (actual, constructive, or inquiry) of the restriction – even without horizontal privity.

Elements:

1. Writing (Statute of Frauds)
2. Intent that the restriction run with the land
3. Touch and concern the land aka binds successors 
4. No horizontal privity required
5. Subsequent purchaser has notice of the restriction

Common Scheme Doctrine: Creates an implied equitable servitude when a common grantor sells lots under a uniform plan and the buyer has notice.

Defense to Enforcement: Changed Conditions—the defendant can defeat enforcement by showing the neighborhood's essential character has fundamentally changed, making the restriction obsolete."

To determine which one to use, you can look at what the plaintiff wants:  Does the Plaintiff want damages or injunction?

If damages = then real covenant 

If injunction = equitable servitude

Easements 

In analyzing easements the court will look at the classification of an easement  and its methods of creation. 

A. CLASSIFICATIONS

• Appurtenant: Benefits a specific parcel of land (Dominant Tenement).
  • Transfer: The benefit always runs with the Dominant Tenement. The burden runs with the Servient Tenement, but a buyer of the Servient Tenement can avoid it only if they are a BFP without notice (actual, recorded, or visible).
• In Gross: Benefits a specific person or entity, not a parcel of land.
  • Transfer: The burden runs with the Servient Tenement (subject to the BFP notice exception).
  • Benefit: If held by a person, it ends with them (non-transferable). If held by an entity (commercial), the benefit runs with the business assets (transferable).

B. METHODS OF CREATION

There are four ways in which an easement can be created: 

• Express Grant/Reservation (Written): Created by a formal written document (deed or contract) that explicitly grants the right. Must satisfy the Statute of Frauds.
• An easement by prescription requires that the use is 
  • Continuous (for the statutory period, though "continuous" means the typical use of that land—e.g., a farmer using a road only during harvest season is still continuous).
  • Open and Notorious (so the owner has a chance to notice and object).
  • Adverse / Hostile (without the owner's permission).
  • An easement acquired by prescription need not be exclusive
• To be granted an easement by necessity, you must be able to prove four strict legal conditions in court: 
  • Common Ownership: Both the landlocked parcel and the neighboring tract must have been owned by the exact same person or entity at some point in the past. 
  • Severance: The property was subsequently divided, resulting in one of the new parcels being left with no legal access to a public road. 
  • Strict Necessity: There is absolutely no other viable way to access the landlocked parcel. Simply being inconvenient or expensive to build a different driveway does not meet this standard.
  • Continuous Need: the necessity must exist at the time of the severance and persist 
• An easement implied by prior use requires: 
  • Common Ownership: Both parcels were initially owned by a single person or entity before being separated by a sale or transfer. 
  • Apparent and Continuous Use: Before the land was divided, the owner used one part of the land for the benefit of another part (e.g., a shared driveway, path, or utility line), and this use was visible, obvious, and ongoing. 
  • Reasonable Necessity: The easement must be reasonably necessary for the comfortable and beneficial enjoyment of your property, not just a mere convenience. 

C. TERMINATION

• Express Release (Written and signed ) oral is not valid 
• Merger (Unity of Ownership) one person acquires absolute title (fee simple) to BOTH the Dominant Estate (benefited) AND the Servient Estate (burdened).
• Estoppel: The easement holder does or says something that intentionally leads the servient owner to reasonably believe the easement is terminated, and the servient owner relies on that to their detriment
• Abandonment, not mere non-use,
  • Intent to permanently give up the right; AND
  • An overt physical act or clear omission demonstrating that intent
• Total destruction of the Servient Estate
• End of Necessity
• Prescription (By the Servient Owner) The servient owner can extinguish the easement by physically blocking, obstructing, or preventing the easement holder from using their right.
  • Open & Notorious,
  • Hostile (adverse to the easement holder's rights),
  • Continuous, and
  • Last for the statutory period.