MBE Rules · Real Property
Equitable servitudes
The rule
Burden runs in equity if: (1) writing (or implied from common plan), (2) intent, (3) touch and concern, (4) notice (actual, constructive, or inquiry). Privity NOT required. Remedy: injunction. May be implied from a common scheme even without writing — "common plan" servitudes.
In plain English
An equitable servitude is a promise about how land can be used that binds future owners if certain conditions are met. These include a written agreement or common plan, intent, relevance to the land, and notice to the buyer.
Worked example
Developer sells lots in a neighborhood with a plan for all homes to be single-story. Buyer builds a two-story house. Neighbors can get an injunction to enforce the single-story rule, even if it's not in the buyer's deed.
Memory hook
Equitable Elves: No Privity Needed. Just write, intend, touch, and know — injunction follows.
The trap
Students think: Privity is needed. Wrong, because equitable servitudes don't require privity. The actual test is writing, intent, touch and concern, and notice.
How examiners test it
Test setup: neighbors in subdivision, one violates restriction. Trap: students miss implied servitudes from common plan when no writing.
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