Study guide
1.7 Covenants Running with Land
California Bar Exam Exam
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7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
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12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
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1.7 Covenants Running with Land
Key Takeaways Explain This Topic AI
Real covenants require writing, intent, touch and concern, horizontal and vertical privity
Equitable servitudes require writing (or common scheme), intent, notice, and touch and concern
Horizontal privity exists when the covenant is created in connection with a land transfer
Vertical privity requires the successor to hold the entire interest of the original party (for burden)
- Common scheme doctrine allows enforcement of restrictions against lots without express restrictions
- Last updated: June 2026
A covenant is a promise concerning the use of land that can be enforced by or against successors to the original parties. Covenants function like private zoning.
Real Covenants vs. Equitable Servitudes
- Feature Real Covenant Equitable Servitude
- Remedy Damages Injunction
- Privity Requirements Horizontal + Vertical Neither required
- Notice Requirement Recording act governs Actual, constructive, or inquiry
- Common Scheme Not applicable Can substitute for writing
- Real Covenants (At Law)
Requirements (WITHIN):
W - Writing
Must satisfy Statute of Frauds.
I - Intent
Original parties must have intended the covenant to run with the land. Look for language like "heirs and assigns" or "successors."
T - Touch and Concern
The covenant must relate to the land itself, not just personal obligations.
Benefits touch and concern if : Increases value or use of benefited land Burdens touch and concern if : Restricts owner's use of burdened land
Examples that touch and concern:
- Promises to pay HOA dues
- Building restrictions
- Maintenance obligations
- H - Horizontal Privity
The original parties must have a pre-existing relationship connected to the land.
Satisfied by:
- Grantor-grantee relationship (covenant in deed)
- Landlord-tenant relationship
- Easement holders
- I - Vertical Privity
Relationship between original party and successor .
For burden to run : Successor must hold the entire estate (not less than) of the original party. For benefit to run : Any successive interest sufficient.
N - Notice
Successor must have notice (actual, constructive, or inquiry).
Equitable Servitudes
More flexible than real covenants—typically enforced through injunctions.
Requirements:
- Writing (Statute of Frauds) OR implied from common scheme
- Intent that covenant run with the land
- Touch and concern the land
- Notice to the burdened party
NO privity required.
Common Scheme Doctrine
When a developer subdivides land intending all lots to be subject to the same restrictions:
Elements:
- Common plan of development existed
- Developer intended restrictions on all lots
- Notice of restrictions (actual, constructive, or inquiry)
Effect:
Restrictions may be enforced:
- Against lots whose deeds don't contain express restrictions
- By and against any lot owner in the subdivision
Evidence of Common Scheme:
- Recorded plat or declaration
- Pattern of restrictions in deeds
- Advertisements, brochures, maps
- Oral representations
- Implied Reciprocal Servitude
When developer restricts some lots, an implied reciprocal servitude may burden the remaining lots:
Requirements:
- Developer had common scheme for entire subdivision
- Restrictions intended to benefit all lots
- Purchaser had notice of scheme
Cannot bind lots sold before common scheme existed.
Termination of Covenants
- Method Description
- Written release All benefited parties agree
- Merger Benefited and burdened land come under single ownership
- Abandonment Multiple violations + acquiescence
- Changed conditions Neighborhood changed so substantially that enforcement unreasonable
- Equitable defenses Laches, estoppel, unclean hands
- Condemnation Government takes burdened land
- Changed Conditions Doctrine
The change must affect the entire subdivision , not just the immediate area.
Comparison: Easements vs. Covenants
- Feature Easement Covenant/Servitude
- Nature Right to use land Promise about land use
- Creation Grant, prescription, implication Agreement
- Typical use Access, utilities Restrictions on use
- Remedy Injunction Damages or injunction
- Homeowner Associations (HOAs)
Modern subdivisions typically create HOAs with power to:
- Enforce covenants
- Levy assessments
- Adopt rules within delegated authority
Business Judgment Rule generally protects HOA board decisions unless:
- Decision is arbitrary or capricious
- No rational basis exists
- Violates public policy or statute
- Exam Application Checklist
Use this section as an issue-spotting checklist, not just a memorization page. The California Bar usually tests 1.7 Covenants Running with Land through facts that force you to choose between two nearby doctrines. Your job is to identify the legally important distinction, state the rule cleanly, and then show why the facts fit or do not fit each element.
Trigger to notice How to analyze it
Real covenants require writing, intent, touch and concern, horizontal and vertical privity Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows.
Equitable servitudes require writing (or common scheme), intent, notice, and touch and concern Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows.
Horizontal privity exists when the covenant is created in connection with a land transfer Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows.
Vertical privity requires the successor to hold the entire interest of the original party (for burden) Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows.
Worked Hypothetical
A strong answer handles both the helpful and harmful facts. If the question gives a fact supporting Real covenants require writing, intent, touch and concern, horizontal and vertical privity, write the rule and apply that fact directly. If it also gives a fact pointing toward Equitable servitudes require writing (or common scheme), intent, notice, and touch and concern, do not ignore it; explain whether it changes the element, creates an exception, supplies a defense, affects admissibility, changes the forum, or only changes the remedy.
If the fact pattern includes Horizontal privity exists when the covenant is created in connection with a land transfer, identify whether that issue is a threshold question or something analyzed after liability. Finally, use Vertical privity requires the successor to hold the entire interest of the original party (for burden) to decide the likely result.
Model Answer Paragraph
Use compact paragraphs: “The issue is whether the rule for Real covenants require writing, intent, touch and concern, horizontal and vertical privity applies. The rule requires [elements]. Here, [fact] supports the first element because [reason]. However, [counterfact] may trigger Equitable servitudes require writing (or common scheme), intent, notice, and touch and concern because [reason]. Therefore, [result], subject to [exception/remedy].” This format is deliberately plain. It gives graders visible rule statements, visible fact application, and a conclusion without burying the answer in outline prose.
Multiple-Choice Tip
For MBE subjects, rewrite missed answer choices in the same structure. Identify why the correct answer resolves the disputed element and why each wrong answer is too broad, uses the wrong rule system, skips an exception, assumes a missing fact, or gives the wrong procedural/remedial consequence. For written-only subjects, turn each missed issue into a one-line rule card plus a two-sentence mini-application.
Self-Test
Before leaving this section, you should be able to list the elements from memory, name one exception or defense, identify the most likely California distinction if the subject calls for one, and explain what remedy, motion, evidentiary ruling, property result, fiduciary remedy, disciplinary consequence, or distribution consequence follows. If you can only recognize the doctrine after seeing the answer, do more practice before moving on.