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Sample Question 1
Sample Question 2
Sample Question 3
Sample Question 4
Sample Question 5
Question 4
Black owned Blackacre which he divided into two parcels. In the deed which transferred the west parcel to White, the parties mutually agreed that, "Owners of Blackacre and Whiteacre and all of their heirs and assigns promise to maintain a retaining wall made of stone between the two pieces of property. They further covenant that they will share equally the expenses involved in this upkeep." The deed was properly recorded. Many different individuals owned Blackacre and Whiteacre during a fifty year period of time. Over the fifty year period no one maintained the remaining wall, and as a consequence it has completely disappeared. Smith, the current or of Whiteacre, decides that he wants to rebuild the retaining wall and asks Jones, the current owner of Blackacre, to pay for half of the expense. If Jones refuses to pay, can Smith successfully sue Jones?
A) Yes, because the covenant ran with the land.
B) No, because the covenant was to repair and here the wall had been completely destroyed.
C) Yes, because the deed created an equitable servitude.
D) No, because the covenant was void under the Rule Against Perpetuities.
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Answer
(B) is the best answer Most of the grounds for the termination of easements also apply to covenants. Accordingly, a covenant may be abandoned under the same circumstances as an easement. Extended nonuse or conduct which unequivocally demonstrates an intent to abandon a covenant will terminate it. Here, failure by the owners of Blackacre and Whiteacre to repair over fifty-year period would constitute an abandonment of the covenant, making (B) a better answer than (A). The relief requested was money damages, not injunctive relief, making "covenant running with land" answers better than "equitable servitude" answers.
(D) is incorrect because the Rule Against Perpetuities applies only to nonvested interests in land and would not apply to this fact situation.
TEST TIP: You must know the distinction between covenants, licenses, easements and profits. A covenant running with the land is a hybrid concept lying somewhere between an interest in land (e.g., an easement or a profit) and a mere personal agreement. A covenant runs with the land when the burdens, benefits, or both pass to succeeding holders of the estate. A license, on the other hand, is a mere personal privilege to make use of land which is granted by the owner to another. It is not an interest in land and is always revocable except for a license coupled with an interest. An easement is an incorporated interest in property of another that allows the easement holder the right to make limited use of the land of the owner/grantor. Since, it is an interest in land, it requires compliance with the Statute of Frauds. Thus, a license may be distinguished from an easement since the former requires no formalities for its creation as does an easement. A profit (or profit a prendre) is a right of one person to go onto the land in possession of another and take therefrom either some part of the land itself or some product of the land. You can distinguish an easement and a profit by the fact that an easement grants to its holder only the right to use the land of another, whereas a profit grants to its holder the right to take either the soil itself or the right to take product of the land such as gravel, minerals, etc.
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