Equitable Servitudes

A. Generally

An equitable servitude is an equitable interest of one property owner (the benefited estate) in the land of another (the burdened estate). Privity is not required to create an equitable servitude.

B. Elements

For an equitable servitude to bind a subsequent purchaser, the following requirements must be met:

1.
Compliance with the statute of frauds. However, negative equitable servitudes may be implied in cases of restricted residential subdivisions, carried out pursuant to a general scheme.

2.
The parties creating the servitude must intend to benefit a particular parcel or parcels of land.

3.
The promisor’s successor in interest must have notice, actual or constructive.

4.
The burden must “touch and concern” the burdened estate.