Non-possessory rights encompass much more than simple easements. Large subsets of these non-possessory rights are created by voluntary agreements known and covenants and equitable servitudes. These two types of non-possessory rights exist in almost every planned subdivision and office-building complex. But few land surveyors even know they exist.

1. EASEMENTS III:
COVENANTS AND EQUITABLE SERVITUDES
Dr. Tony Nettleman, RPLS, Esq.

2. YOU CAN ONLY PAINT YOUR
HOUSE THREE SHADES OF WHITE
White House, Red Roof, Anyone?

3. IN ORDER TO HAVE A VALID
COVENANT:
• It Must Be Enforceable
• The Original Covenanting Parties Must Intend
That The Covenant Run With The Land
• Must Have Horizontal And Vertical Privity
• Purchaser Of Burdened Property Must Have
Notice Of Covenant

4. COVENANT MUST BE
ENFORCEABLE
• Not Unreasonable as a Matter of Public
Policy
• Not Too Vague
• In Writing That Complies With Statute of
Frauds

5. McHuron v. Grand Teton (1995)
FACTS
• The new home included fiberglass
shignles, not cedar

6. 3) IN WRITING THAT COMPLIES WITH
STATUTE TO PREVENT FRAUDS
• Identify the parties involved
• Identify the land being conveyed
• Express the grantor’s intent to convey the
land to the grantee
• Include the signature of the grantor

7. STATUTE OF FRAUDS:
INCLUDE THE SIGNATURE OF THE GRANTOR

8. COMMON LAW
REQUIREMENTS
• The covenant must not be personal in
nature - it must benefit the land rather than
an individual
• The covenant must 'touch and concern' the
land - it must affect how the land is used or
the value of the land
• The benefited land must be identifiable.

9. HORIZONTAL PRIVITY
horizontal is privity of estate between
original covenanting parties

10. ORIGINAL COVENANTING PARTIES:
GRANTOR/GRANTEE

11. VERTICAL PRIVITY
Smith
(1898)
Johnson
(1921)
Able
(1947)
Dickenson
(1987)
YES or NO?
• Warranty deed
• Quitclaim deed
• Adverse possession
• Prescriptive
easement

12. ACTUAL NOTICE
actual awareness or direct notification of a specific fact, demand, claim, or
proceeding [had actual notice of the meeting] called also express notice