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Covenants enforceable under the rule of Tulk v Moxhay... are properly conceived as running with the land in equity and, by reason of their enforceability, as constituting an equitable servitude or burden on the servient land. The essence of such an incident is that it should touch or concern the land as contradistinguished from a collateral effect.
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. [1] In England and Wales the term is defunct and in Scotland it has very long been a sub-type of the Scottish legal version of servitudes, which are what English law calls easements.
Real covenants and easements or equitable servitudes are similar [9] and in 1986, a symposium discussed whether the law of easements, equitable servitudes, and real covenants should be unified. [4] As time passes and the original promisee of the covenant is no longer involved in the land, enforcement may become lax. [10]
There are five basic conditions that must be met in order for there to be an effective real covenant and equitable servitude: It must be enforceable . To be enforceable it must not be too vague, it must not violate a statute or the constitution , it must not violate public policy, and it must meet the requirements under the statute of frauds .
A full coverage search is usually done when creating a title report for sale/resale transactions and for transaction that involves construction loans. It generally includes searches related to property lien, easements, covenants, conditions and restrictions(CC&Rs), agreements, resolutions and ordinances that will affect the real property in question.
While affirmative covenants to pay money historically violated the touch and concern doctrine, [171] as long as the servitude is "beneficial to the owner of the land whoever it might be, reasonably relates to the property, is legally justified, and concerns the property", [172] it will be enforced, even when the servitude is an affirmative ...
Properties that are sold on the basis of equitable title have a legal chain of title intact, and a recorded transfer with the local municipality. Legal title is actual ownership of the property as when the property has been bought, the seller paid in full and a deed or title is properly recorded. Equitable title separates from legal title upon ...
If the landowner owns everything beneath the ground on his property, he may convey to another party the rights to mineral deposits under the land and other things requiring excavation, such as easements for buried conduits or for water wells. However, such a conveyance requires the recipient to prevent any damage to the surface of the land ...