Bar Exam — MBE (Multistate Bar Exam)Real PropertyMedium
A developer purchased a large tract of land, intending to subdivide it into residential lots. Before selling any lots, the developer recorded a declaration of covenants, conditions, and restrictions (CC&Rs) that included a restriction prohibiting any structure taller than two stories and requiring all homes to be painted in earth tones. The developer then sold the first lot to a buyer, and the deed referenced the recorded CC&Rs. Years later, the buyer of the first lot decided to build a three-story addition and paint it bright purple. Other homeowners in the subdivision sued to enforce the CC&Rs. What is the most likely legal basis for the other homeowners to enforce the restriction?
- APrescriptive easement, due to the long-standing nature of the restriction.
- BEquitable servitude, enforceable by other lot owners as beneficiaries of a common scheme.
- CEasement by implication, because the restriction was clearly intended for the benefit of all lots.
- DReal covenant, enforceable at law for damages, but not necessarily for injunctive relief.
Show answer & explanationAnswer & explanation
Correct answer: B. Equitable servitude, enforceable by other lot owners as beneficiaries of a common scheme.
This scenario describes a common scheme of development where restrictions are placed on all lots for the mutual benefit. When damages are inadequate, equitable servitudes allow for injunctive relief to enforce these restrictions, especially when there's notice and intent for a common plan.
Why the other options are wrong
- A. Prescriptive easements arise from adverse use, not from recorded declarations and common development schemes.
- C. Easements by implication relate to access or use, not building restrictions in a development scheme.
- D. While it could also be a real covenant (enforceable at law), equitable servitudes are the primary mechanism for injunctive relief in common scheme developments.
Equitable Servitude
A covenant respecting the use of land that, though not running with the land at law, is enforceable in equity against subsequent purchasers with notice.
- Requires intent, notice (actual, record, or inquiry), and touches and concerns the land.
- Often arises in common development schemes (e.g., subdivisions).
- Enforceable by injunction for specific performance, not typically for damages.
Memory trick: Common Scheme of Equity