Equitable servitude
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| Property law |
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| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
| Lost, mislaid, and abandoned property |
| Bailment · Licence |
| Estates in land |
| Allodial title · Fee simple |
| Life estate · Fee tail · Future interest |
| Concurrent estate · Leasehold estate |
| Condominiums |
| Conveyancing of interests in land |
| Bona fide purchaser · Torrens title |
| Estoppel by deed · Quitclaim deed |
| Mortgage · Equitable conversion |
| Action to quiet title |
| Limiting control over future use |
| Restraint on alienation |
| Rule against perpetuities |
| Rule in Shelley's Case |
| Doctrine of worthier title |
| Nonpossessory interest in land |
| Easement · Profit |
| Covenant running with the land |
| Equitable servitude |
| Related topics |
| Fixtures · Waste · Partition |
| Riparian water rights |
| Lateral and subjacent support |
| Assignment · Nemo dat |
| Other areas of the common law |
| Contract law · Tort law |
| Wills and trusts |
| Criminal Law · Evidence |
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, requiring the landowner to maintain certain practices with respect to the land (e.g., building a fence), or prohibiting certain practices (e.g., using heavy machinery). It is also called easement. Equitable servitudes must be created by a writing, unless it is a negative equitable servitude (one that prohibits certain behavior) which may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, including Massachusetts.
Because an equitable servitude is, as the name suggests, a creature of equity, all of the common equity defences apply against it:
- Unclean hands - a landowner will not be able to prevent a neighbor from engaging in a prohibited activity that the landowner himself has engaged in.
- Acquiescence - a landowner will not be able to prevent one neighbor from engaging in a prohibited activity if that landowner did not complain when another neighbor engaged in the same activity.
- Estoppel - a landowner will not be able to prevent a neighbor from engaging in a prohibited activity if the landowner acted in a way that led his neighbors to rely on the belief that he would not complain of this activity.
- Laches - a landowner will not be able to bring suit against a violator unless he does so within a reasonable time.
Furthermore, if the character of the neighborhood changes sufficiently, through changes in zoning or through nonenforcement of the equitable servitude in one part of the neighborhood (called an entering wedge) then the equitable servitude may be deemed unenforceable as to the entire neighborhood.
Categories
Real property law