An equitable servitude is an agreement or contract between two or more parties that limits their use of property. An equitable servitude benefits and burdens the original parties to the agreement as well as their predecessors. Some examples of equitable servitudes are:
- A promise to maintain a property as an open park
- A promise to use property for residential use only
- A promise not to build tall buildings on the property
Creation of equitable servitudes is very similar to the creation of real covenants in that:
- The servitude must be in writing to satisfy the statute of frauds
- The original parties to the servitude must intend to bind any subsequent owners
- The servitude must relate to the direct use of the land
- Subsequent owners must have notice of the servitude
However, equitable servitudes differ from real covenants in two important ways.
- Equitable servitudes do not require privity of estate, meaning that there does not need to be any special relationship between the person seeking to enforce the equitable servitude and the landowner whom they seek to enforce it against.
- The remedy for enforcing an equitable servitude is an injunction, while the law provides damages for the breach of a real covenant.
Equitable servitudes are especially useful when all of the formal requirements of real covenants are not present.
It is also important to note that most courts will imply an equitable servitude, absent a writing, if there is an overall developmental scheme or common plan. The common plan is viewed as an implied promise by a developer to impose the same restrictions on all of his land.
Equitable servitudes are terminated under the following circumstances:
- Racially restrictive servitudes are unconstitutional and thus unenforceable
- Changed conditions make an equitable servitude unenforceable if circumstances have changed so drastically that no benefit can be drawn from it
The remedy for breach of an equitable servitude is an injunction. This means that a court will issue an order telling the breaching party to stop violating the servitude. If they do not, they can be held in contempt of court.
Equitable servitudes affect your rights as a property owner. A real estate attorney can help you determine if any equitable servitudes affect your land, and to what extent. An attorney can also help you determine if you are entitled to the benefits of an equitable servitude and help you secure an injunction if one is being breached.