Also known as: equitable servitudes · equitable restriction
Written by attorneys · grounded in primary & secondary sources — see below
A restriction on the use of land enforceable in equity against a successor who takes with notice of the restriction. The restriction must appear in a writing that satisfies the statute of frauds and must reflect an intent to bind successors while touching and concerning the land.
Esme Ellington buys a lot in Sandy Acres Estates after the developer records a declaration requiring all owners to maintain yards according to approved landscape plans. When Esme plants an unapproved hedge, neighboring owners seek an injunction. The court enforces the restriction because the recorded declaration supplies the required writing and notice.
Edgar Evers purchases a condominium unit subject to recorded CC&Rs that prohibit pets. After moving in with three cats, the association sues for an injunction. The court upholds the restriction because the recorded document gave Evers constructive notice and the promise touches and concerns the land.
Select any source to read its text and confirm it supports the definition.
Emily Ellis acquires a lot in Alpine Meadows Estates. The deed to her contains no restrictions, yet the original subdivision map and later deeds impose height and use limits. When she begins construction that violates the limits, the planning committee sues. The court refuses to enforce the restrictions as an equitable servitude because the deed to Ellis supplied no notice.
Ella Emerson owns a unit in La Jolla Shores Clubdominium. The homeowners association board adopts a maintenance rule for common areas that increases her assessments. She challenges the rule as unreasonable. The court defers to the board because the recorded CC&Rs create an equitable servitude that the association may enforce through reasonable rules.
An equitable servitude is enforced by injunction when the successor takes with notice, while a real covenant traditionally requires privity and yields damages. Modern law treats both as covenants that run with the land under a unified analysis.
Supporting sources
The restriction must appear in a writing, reflect intent to bind successors, touch and concern the land, and the defendant must have actual or constructive notice.
Supporting sources
Yes. A court may refuse enforcement when neighborhood changes make the original purpose impossible to achieve, such as a shift from residential to commercial use.
Supporting sources
No. The Restatement treats both as covenants that run with the land and uses the older labels only to describe historical development.
Supporting sources
…shall be kept in any unit." (Declaration, Art. VI, § 6.2.) The Declaration also states that its provisions are "enforceable equitable servitudes" that are "binding on all parties having any right, title or interest" in the project. (Declaration, Art. I, § 1.1.) In 1989, plaintiff brought three cats into her condominium unit. When…