MBE Rules · Real Property
Covenant vs. Servitude Remedies
Servitudes — remedy split
The rule
The same promise is enforced as a real covenant for damages at law and as an equitable servitude for an injunction; plaintiffs choose the theory matching the remedy sought, with notice replacing privity in equity.
In plain English
A covenant is a promise regarding land use that can be enforced through monetary damages, while an equitable servitude allows a party to seek an injunction to stop a violation. Plaintiffs can choose whether to pursue damages or an injunction based on their needs, and in equitable servitudes, notice of the covenant can substitute for the traditional requirement of privity.
Worked example
A homeowner has a covenant that prohibits building fences taller than four feet. When a neighbor constructs a six-foot fence, the homeowner can sue for damages as a breach of the covenant or seek an injunction to remove the fence. The homeowner chooses to seek an injunction, successfully stopping the neighbor from violating the covenant.
Memory hook
Covenants for cash, servitudes for stops!
The trap
Exams may confuse students by presenting scenarios where both remedies seem applicable, leading candidates to misidentify the appropriate legal theory to pursue.
How examiners test it
Questions often present a fact pattern involving a property dispute where students must determine whether to apply the covenant or servitude theory based on the remedy sought.
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