Covenants, Equitable Servitudes and Restrictions 5: Defenses to Enforcement

This lesson is designed to assist the first year Property student in analyzing the various questions arising from one's attempting to enforce real covenants and equitable servitudes. It follows in the order of the analytical process developed in the lesson on creating covenants and addresses the question "What defenses might be available to one against whom another is attempting to enforce a real covenant, equitable servitude or restriction?"

This tutorial is the fifth and final tutorial in a series of lessons. To get the maximum benefit of CALI's alternative approach, before using this exercise, students should complete the following lessons in order: Covenants, Equitable Servitudes and Restrictions: Creation, Covenants, Equitable Servitudes and Restrictions: Determining Their Validity and Scope, and Covenants and Equitable Servitudes: Who Has the Right to Enforce Covenants and Equitable Servitudes?

As with many areas of the law, especially the more complicated ones, there is more than one way to analyze a problem. Law students and attorneys regularly find the study of real covenants and equitable servitudes to be extremely difficult. Casebooks and hornbooks often address more than one topic at a time when dealing with legal issues. In contrast, to facilitate students' learning and understanding, CALI's series of lessons on real covenants and equitable servitudes provides an approach which breaks the study into more discreet, digestible components. This will not replace the traditional analysis regarding real covenants and servitudes. Rather, by mastering the CALI lessons, students will be better able to understand traditional covenants analyses.

Learning Outcomes

On completion of the lesson, the student will be able to:

1. Name the most likely sources from which one might find defenses to the enforcement of covenants, equitable servitudes and restrictions.
2. Relate which defenses might arise from the parties’ intentions.
3. Recall which defenses might arise from contract related law.
4. Cite which defenses might arise from property related law.
5. Explain which defenses might arise from equity.