Covenants, Equitable Servitudes and Restrictions 4: Against Whom May One Enforce the Promise?

This lesson is designed to assist the first year Property student in analyzing the various questions arising from one's attempting to enforce real covenants and equitable servitudes. It follows in the order of the analytical process developed in the lesson on creating covenants and addresses the question "Under what circumstances might one who is not the original promisor be liable for not performing the promise?"

This is the fourth in a series of lessons. To get the maximum benefit students should complete the following lessons in order: Covenants, Equitable Servitudes and Restrictions: Creation; Covenants, Equitable Servitudes and Restrictions: Determining Their Validity and Scope; and Covenants, Equitable Servitudes and Restrictions: Who Has the Right to Enforce Covenants and Equitable Servitudes?

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. Define who qualifies as an original promisor.
2. Identify which parties other than an original promisor might qualify as one against whom a restriction might be enforced.
3. Describe who qualifies as a successor to the original promisor.
4. Identify the elements necessary for the burden to be enforceable at law against someone who is not the original promisor.
5. Identify the elements necessary for the burden to be enforceable in equity against someone who is not the original promisor.
6. Define the following key elements as they relate to determining against whom there is a right to enforce covenants/promises: Horizontal Privity; Intent; Touch and Concern; Vertical Privity; and Notice.