Notes for Real Property Assignment 2
INVALID RESTRAINT ON ALIENATION:
There are five basic conditions that must be met in order for there to be an effective real covenant and equitable servitude: 1. It must be enforceable. To be enforceable it must not be too vague, it must not violate a statute or the constitution, it must not violate public policy, and it must meet the requirements under the statute of frauds. 2. It must touch and concern the land. 3. It must be intended to run. 4. There must be privity between the successive occupants. 5. There must be notice of the existence of a real covenant/equitable servitude.
Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. It is an important concept in contract law.
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks. Holders of a covenant seek money damages, but holders of equitable servitudes seek injunctions.
“four unities”
1) Time: Both parties must have received the property at the same time
2) Title: Both parties must have received the property via the same written instrument
3) Interest: Both parties must own the same estate in the property
4) Possession: Each must have a full and equal right to possess the property
“right of survivorship”; When one joint tenant dies, the other takes over his or her share

McGahey v. Wilson, 2001 Tenn. App. LEXIS 499 (Tenn. Ct. App. July 17, 2001)
“The husband and the wife purchased approximately three acres of land together and built a residence on it during their marriage. Thereafter, the parties