Covenants Running with the Land

Question 1

Covenants Running with the Land Requirements

Answer 1

(a) Intent (that it’s a cov running w/ the land)
(b) Touch and concern the land: if it affects burdened party in capacity as landowner
(c) De facto notice (must be recorded in land records)
(d) Vertical Privity: subsequent owner has taken entire legal interest (prob: LL/tenant; right of re-entry)
(e) Horizontal Privity: established when:
(i) American rule: 1) either a mutual interest (easement, profit) or 2) if cov created at time of sell
1. English rule: only LL-tenant relationship
2. MA rule: mutual interest in land (easement, profit)
3. modern rule: no HP necessary for running cov (as long as original parties intended)

Question 2

Mosely:

Answer 2

cov (drain tile maintenance) implies easement (HP satisfied) and that cov runs w/ land

Question 3

Kotseas:

Answer 3

significant economic impact (non-compete cov) sufficient for T/C

1. F: restriction: not to build discount store; ∆ leased to CVS knowing it would violate–>enforceable; broad interpretation of T/C
2. PP argument: shouldn’t enforce non-competes (counter: may not sell if can’t restrict use)analysis: more narrow the geographic scope, more likely to be enforced