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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.
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.
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]
To be effective the restraint must be reasonable and the restraint must be the same as a real covenant or equitable servitude. There are six factors to determine if a restraint on alienation is reasonable: Type of price (fixed or not fixed; courts prefer non-fixed) Purpose: Is it a legitimate purpose, or not? (courts prefer legitimate)
An easement is similar to real covenants and equitable servitudes. [2] In the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes. [3] Easements are helpful for providing a 'limited right to use another person's land for a stated purpose.
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At civil law, ownership (dominium) (e.g. of land) is the only full real right whereas a servitude is a subordinate real right on par with wayleaves, real burdens (i.e. real covenants), security interests, and reservations. There are two types: [2] predial, attaching to property, and personal, attaching to a person.
In relation to the sale of land, for example, two sets of legal relationships exist alongside one another: the contractual right to sue for damages, and the property right exercisable over the land. More minor property rights may be created by contract, as in the case of easements, covenants, and equitable servitudes. [12]