Covenants, Equitable Servitudes and Restrictions 2: Determining the Validity and Scope

This lesson is designed to assist the beginning Property student with analyzing the numerous potential questions arising when one encounters a real covenant or equitable servitude. The lesson addresses the questions of what might make a validly created covenant or equitable servitude invalid or unenforceable and what factors influence whether a restriction applies to offending conduct.

This is the second in a series of lessons. To get the maximum benefit students should first complete the lesson on Covenants and Equitable Servitudes: Creation.

As with many areas of the law, especially the more complicated ones, there is more than one way to analyze a problem. Students and attorneys regularly find the study of real covenants and equitable servitudes to be extremely difficult. Casebooks and hornbooks often address more than one topic at a time when dealing with topics. In contrast, to facilitate students' learning and understanding, CALI's series of lessons on real covenants and equitable servitudes provides an approach which breaks the study into more discrete, digestible components. This will not replace the traditional analysis regarding real covenants and servitudes. Rather, by mastering the CALI lessons, students will be better able to understand traditional covenants analyses.

Learning Outcomes

On completion of the lesson, the student will be able to:

1. Recall the criteria utilized to determine whether a restriction is invalid.
2. Report the elements to consider in order to determine whether a restriction offends public policy.
3. Recognize the bases on which one might find that a restriction violates the common law.
4. Name the types of statutory and regulatory schemes that might be considered in determining a restriction’s validity.
5. Discuss how a court determines whether a restriction applies to allegedly restricted behaviors.