Real Covenants

Question 1

Burden to “run with the land” requirements

Answer 1

a. Writing required between original parties/owners.
b. Intent that the promise apply to successors to the property.
c. Must “touch and concern” the land. For the servient parcel, this means the promise restricts the use of the servient parcel in some way, thus decreasing the use or enjoyment, or requires the servient parcel to do something.
d. Horizontal and vertical privity is required for the burden to run.
e. Notice is required and can be actual, constructive (record), or inquiry notice.

Question 2

Horizontal privity

Answer 2

Horizontal privity refers to the privity between the original promising parties. They must have shared some interest in the land apart from covenant itself (e.g., developer/purchaser, landlord/tenant).

Question 3

Vertical privity

Answer 3

requires that the successor now is the holder of the entire interest that the party making the covenant had (e.g., grantor/grantee, landlord/tenant, buyer/seller, mortgagor/mortgagee, assignor/assignee of lease).

Question 4

Benefit to “run with the land” requirements

Answer 4

a. Writing required between original parties/owners.
b. Intent that the promise apply to successors to the property.
c. Must “touch and concern” the land. For the dominant parcel, this means the promise benefits the dominant parcel by increasing the use or enjoyment of the property.
d. Vertical privity is required, meaning the successor now is the holder of the entire interest that the party making the covenant had (e.g., grantor/grantee, landlord/tenant, or mortgagor/mortgagee). e. No horizontal privity or notice is required.

Question 5

Termination or modification of covenants

Answer 5

Termination or modification of covenants is allowed in the following circumstances:

a. Agreement of all parties in a sufficient writing.
b. Abandonment action: The covenant holder demonstrates by physical action the intent to abandon the covenant. Words alone or mere nonuse will not be sufficient to constitute abandonment.
c. Changed conditions: Conditions have changed so significantly that the purpose of the covenant is impossible to accomplish.

Question 6

Real covenants

Answer 6

Real covenants are written promises between two parties that meet certain technical requirements, such that the promises “run with the land,” meaning they are binding on future purchasers/holders of the land. The requirements are different depending on whether the benefit or burden of the covenant is running with the land (e.g., build single- family dwellings on the land only). The remedy for breach of a covenant is money damages.