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From my outline last semester:
The Implied Covenant of Quiet Enjoyment is implied in every lease. According to the Restatement of Property, it is breached when when the landlord affirmatively does something to interfere or by withholding something essential to the full enjoyment of the property when the basis of the act/omission is included within the terms of the lease.

So to me, that would say that it can't be waived as far as the terms of the lease go. But I could be wrong.

Posted by: Aviva at May 1, 2004 04:47 PM

I believe covenants running with the land requiring the covenant to "touch and concern the land," be created in the same instrument as the grant, be intended to run with the land, and there must be privity (either vertical or horizontal).

Good luck on the exam.

Posted by: Matthew at May 1, 2004 05:16 PM

Thanks for those tips. I may just be learning how much I don't know. Last night I was reminded that my Prof wants us to do a common law and "post-LL/T-revolution" law analysis for LL/T problems. I think at common law there was no implied covenant of habitability, so my question 1 is assuming a "reformed" jurisdiction, in which case I think Aviva's tip applies.

As for the burdens running, is there a simple way to understand privity? A grantor/grantee have horizontal privity when? And they have vertical privity if the grantor grants the identical estate as he got? Is that right? If I got an FSA from O, and I grant you an FSA, then you and I are in vertical privity, right?

There's some circumstance or test under which horizontal privity is not required, but vertical is. Clearly I need to study this stuff more. However, at the moment it's time to move to ConLaw. Yay.

Posted by: ambimb at May 2, 2004 07:18 AM

to determine if the RC runs with the land, you need intent (inferred from circumstances or evidenced in writing by something saying it "runs with the land" or " for X and his heirs, successors and assigns"), notice (actual, inquiry, constructive), the C must be in writing, RC must touch and concern the land (has something to do with land or enjoyment of the land), and then privity( horizontal and vertical)

there is horizontal privity when the original covenating parties are buyer/seller, or I think in one state you can have a grantor/grantee relationship.
for vertical privity, you look at the different sides. It's usually not needed for the benefit side in most states. On the burdened side, it must exist for the covenant to run with the land. to get vert. privity, the first party must transfer the full and entire property right in the burdened parcel, and cannot retain any future rights. So no vert. privity for leaseholds, life estates, etc. If you don't have vert. privity, thats when you start to argue for an ES instead of a RC.

privity is needed for a real covenant, while it is not needed for an equitable servitude. An ES is the same as a RC except for the privity element. the difference is in the remedies available: for a RC, you can get damages, while with a ES you only get an injunction.

the implied warranty question varies by state, but yes, post LL/T reform would usually have one that cannot be waived I believe

Posted by: Anonymous at May 2, 2004 10:19 AM