You’ve memorized the elements of adverse possession. You can recite the Rule Against Perpetuities in your sleep. But then an MBE question asks whether a restriction on land use “runs with the land,” and suddenly you’re staring at answer choices about real covenants versus equitable servitudes, privity requirements, and horizontal versus vertical privity. Your brain freezes. Which test applies? What’s the difference?

This distinction trips up countless bar examinees because the doctrines overlap significantly but have different technical requirements. Let’s break down exactly what you need to know.

What Are Restrictive Covenants and Why Do They Matter?

A restrictive covenant is a promise concerning the use of land that restricts what an owner can do with their property. Think: “No commercial use,” “No structures over two stories,” or “Residential purposes only.” These restrictions appear constantly in residential subdivisions and planned communities.

The MBE tests whether these restrictions are enforceable against subsequent purchasers—whether they “run with the land” to bind future owners who weren’t party to the original promise. The answer depends on whether you’re analyzing the restriction as a real covenant or an equitable servitude.

Here’s the critical point: these are not different types of promises. They’re different theories for enforcing the same promise. The distinction matters because they have different requirements and different remedies.

Real Covenants: When You Want Money Damages

A real covenant is a promise concerning land use that is enforceable at law. If you’re seeking money damages for breach, you’re pursuing a real covenant claim.

For a covenant to run with the land as a real covenant, you need all of these elements:

Writing: The original promise must satisfy the Statute of Frauds. Oral promises don’t count.

Intent: The original parties must have intended the covenant to run with the land. Courts look for language like “and their heirs and assigns” or “successors in interest.”

Touch and Concern: The promise must affect the parties’ legal relations as landowners, not just as individuals. Restrictions on land use almost always satisfy this (no pink houses, no commercial activity). A promise to pay the seller’s unrelated personal debt does not.

Notice: The subsequent purchaser must have had actual, constructive (recorded), or inquiry notice of the covenant. Without notice, it’s fundamentally unfair to bind someone to a restriction they didn’t know existed.

Privity: This is where real covenants get complicated. You need two types:

Here’s a typical MBE fact pattern: Developer subdivides land and sells Lot 1 to Alice with a deed containing a covenant that “the property shall be used for residential purposes only, and this restriction runs with the land.” Alice later sells to Bob. Developer sues Bob for money damages when Bob opens a law office on the property.

Can Developer recover damages under a real covenant theory? You’d analyze: Writing (yes, in the deed), intent (express language about running with the land), touch and concern (yes, use restriction), notice (Bob had record notice from Alice’s deed), horizontal privity (yes, Developer and Alice were in a grantor-grantee relationship), and vertical privity (yes, Bob holds the same fee simple Alice held). The covenant runs, and Developer can recover damages.

Equitable Servitudes: When You Want an Injunction

An equitable servitude is the same promise enforced in equity rather than at law. If you’re seeking an injunction to stop the prohibited use, you’re pursuing an equitable servitude.

The requirements are more relaxed:

Writing: Generally required, but courts recognize an exception for implied reciprocal servitudes in common schemes. If a developer sells lots in a subdivision with restrictions in some deeds but not others, buyers of unrestricted lots may still be bound if they had notice of a common plan.

Intent: Same as real covenants—the parties must have intended to bind successors.

Touch and Concern: Same requirement. The promise must relate to the land use.

Notice: Same as real covenants. The subsequent purchaser must have had notice.

No Privity Requirement: This is the key difference. Equitable servitudes do not require horizontal or vertical privity. The promise can be enforced between neighbors who never shared any interest in land beyond the covenant itself.

Return to our Developer-Alice-Bob hypothetical. If Developer seeks an injunction to shut down Bob’s law office rather than money damages, the analysis becomes simpler. Developer doesn’t need to prove privity. As long as the covenant was in writing, the parties intended it to run, it touches and concerns the land, and Bob had notice, the court can enjoin the commercial use.

Running with the Land: The Burden and the Benefit

Here’s a subtlety that appears on the MBE: the burden (the duty to comply) and the benefit (the right to enforce) can run separately.

The burden is what binds the successor owner to the restriction. The benefit is what allows someone to enforce it. For a covenant to be enforceable against a successor, the burden must run. For a successor to enforce it, the benefit must run.

Generally, if the burden runs, the benefit runs too. But occasionally you’ll see a question asking whether a particular party has standing to enforce. The benefit runs with the land if the original parties intended it and it touches and concerns the benefited land.

Example: Developer imposes a restriction on Lot 1 that benefits Lot 2 (which Developer retained). Developer sells Lot 2 to Carol. When the owner of Lot 1 violates the restriction, can Carol enforce it? Yes, if the benefit ran to Carol when she purchased Lot 2. The restriction touched and concerned Lot 2 (it protected Carol’s property value and use), and the parties intended it to run.

Common MBE Traps with Restrictive Covenants

Changed Conditions Doctrine: Even a valid covenant may be unenforceable if the neighborhood character has changed so substantially that the restriction no longer serves its purpose. If a residential-only restriction was imposed in 1950 but the entire surrounding area is now commercial, courts may refuse to enforce it. But this is a high bar—scattered violations don’t suffice.

Acquiescence and Waiver: If the party seeking to enforce the covenant has previously tolerated violations by others, they may have waived the right to enforce. This appears when a homeowners association has ignored violations for years and then suddenly tries to enforce against one owner.

Affirmative vs. Negative Covenants: Real covenants can be affirmative (requiring someone to do something, like pay dues) or negative (prohibiting an action). Equitable servitudes are traditionally only negative. The MBE rarely tests this distinction deeply, but be aware that money damages for failure to pay assessments would be analyzed as a real covenant.

Recording Acts: Even if a covenant satisfies all requirements to run with the land, a subsequent purchaser may take free of it under the jurisdiction’s recording act if they qualify as a bona fide purchaser without notice. Always check whether the successor had notice.

Memorization Strategy: Focus on the Remedy

The easiest way to keep these doctrines straight is to start with the remedy requested in the question.

Money damages sought? → Real covenant → Check for privity (both horizontal and vertical)

Injunction sought? → Equitable servitude → No privity required

Both require writing, intent, touch and concern, and notice. The privity requirements are what separate them.

If you’re organizing your Real Property outlines, this is one area where FlashTables really clarifies the distinction. The Real Property table breaks down each element side-by-side so you can see exactly where the tests diverge. When you’re drilling practice questions, having the requirements laid out in two columns makes pattern recognition much faster—you spot the remedy, check the elements, and move on.

What to Memorize for Test Day

Lock in these core rules:

Real covenant requirements: Writing, intent, touch and concern, notice, horizontal privity (between original parties), vertical privity (between original party and successor). Remedy: damages.

Equitable servitude requirements: Writing (with exception for implied reciprocal servitudes in common scheme), intent, touch and concern, notice. No privity required. Remedy: injunction.

Touch and concern test: Does the promise affect the parties as landowners? Use restrictions almost always qualify. Personal obligations almost never do.

Horizontal privity: Requires a shared interest beyond the covenant itself—typically grantor-grantee relationship. Not required for equitable servitudes.

Vertical privity: Successor must hold the entire estate. Not required for equitable servitudes.

Implied reciprocal servitudes: Arise in common scheme developments when purchaser has notice of a general plan of restrictions even if not in their deed.

Changed conditions: Substantial change in neighborhood character may make covenant unenforceable, but bar is high.

The MBE loves testing this material because it combines contract principles, property interests, and equitable doctrines. Questions often give you a restriction, a violation, and a lawsuit, then ask whether the plaintiff can recover. Train yourself to immediately identify the remedy sought, then run through the applicable checklist.

If you want all 111 Real Property rules organized for exactly this kind of active recall, FlashTables covers restrictive covenants along with every other property doctrine tested on the MBE. The two-column format is built specifically for memorizing elements and applying them under pressure—which is exactly what you’ll need to do in that testing center.

Master the distinction between these two theories, and you’ll handle restrictive covenant questions with confidence instead of confusion.