REAL COVENANTS (promises relating to land)

Question 1

Issue(s)

Gallagher v. Bell

Answer 1

Are these promises real covenants?

Does the conveyance of the land that is subject to the real covenant DISCHARGE the original promisor?

Question 2

When do you know that you have a real covenant?

Answer 2

The promise must RUN w/the land

Question 3

What does run w/the land mean/require?

MUST HAVES

Answer 3

1) must Touch & Concern the land
2) be entered w/the INTENT that the promise will run w/the land
3) be entered and enforced by parties w/ the appropriated “Privity of esate”

Question 4

If missing any of the 3 requirements of running w/the land then what do we have?

Answer 4

a personal contract, which means only orig. parties are bound.

Question 5

what is a restrictive covenant?

Answer 5

another word for Real Covenant

Question 6

how do we know if it “touches & concerns the land?” (powell & Bigelow’s view)

Answer 6

1) if the covenanter’s estate is rendered less valuable because of the promise, the BURDEN RUNS W/LAND
2) if the covenantee’s estate is rendered more valuable because of the promise, the BENEFIT RUNS W/LAND

Question 7

Touches & Concerning- Restatement View

Answer 7

requires that the promise be:
-of BENEFIT to the use or enjoyment of the land
(much broader view then P& B)

Question 8

Covenantor/Promisors estate less valuable

P&B

Answer 8

lowered market value

ex) promise is person has to paint fend . NO one wants to buy land that having to paint is a requirement. :(

Question 9

Covenantee’s interest enhanced (P&B)

Answer 9

the party that got the fence, property value hasn’t gone down

Question 10

which view do most jurisdictions like

Answer 10

restatement

Question 11

Why don’t we like promises unless they “run w/land”

Answer 11

it’s like feudal law all over again. NON-connected promises render land worthless. (w.out touch & concern requirement, people would go after too many promises)
(dowry, knighthood obligations)

Question 12

run w/land = ___ __ ____

Answer 12

touch & concern

Question 13

INTENT

Answer 13

parties must have INTENDED the promise to run w/the land for it to be a real covenant

Question 14

Intent is a question of _____?

Answer 14

FACT

most typically—will be clearly expressed in deed. “this covenant shall runw/land”

Question 15

Privity, english rule?

Answer 15

MUTUAL PRIVITY

Question 16

mutual privity?

Answer 16

the original parties had a continuing interest in the same land

Question 17

interests w/ mutual privity

Answer 17

-Possessory Estates & assoc. future interests
-landlord/tenant; tenancy,reversion
-cotenants (any variety)
-

Question 18

Privity, Minority American rule

Answer 18

Horizontal Privity

Question 19

Horizontal Privity

Answer 19

the original parties were grantor and grantee on the deed that contained the promise

Question 20

why does horizontal privity have to be a grantor/grantee relationship?

Answer 20

as the promise is created at the time the deed was created

Question 21

3 factors to look at w/Horizontal Privity

Answer 21

ALL TOGETHER

1) a conveyance
2) simultaneous w/ creation of promise
3) Same deed

Question 22

Privity, Majority American Rule

Answer 22

Vertical Privity

Question 23

Vertical privity

Answer 23

the enforcement parties are successors in interest to the original contracting parties –no specific relationship is needed between the original contracting parties

Question 24

Are you a party that enters promise or did you acquire title form someone who did?

Answer 24

if you acquired title from someone who did then it’s vertical privity
(successor in interest or assignee)

Question 25

do we care about the relationship in vertical privity?

Answer 25

NO.

Question 26

if you are in a minority state w/ horizontal privity what must you still look at …?

Answer 26

Vertical Privity as well.

Question 27

Is the privity requirement dying?

Answer 27

( Neponsit Property owners v. emigrant industrial Sav. Bank)
-some states recognize that her is an advantage to allowing a home owner’s assoc. to enforce easements despite the fact the ASSOC OWNS NO LAND
(doesn’t own anything so how can run w/land??)

Question 28

Home owner’s assoc being popular & beneficial resulted in two options:

Answer 28

1) abolish privity (cuz didn’t owns anything)
or
2) great an exception===PRIVITY TO AN AGENT

Question 29

Two land owners & agreement between each other, do we care?

Answer 29

no, a personal contract

Question 30

when do we care when two land owners made an agreement?

Answer 30

When one owner is GONE & SELLS land

only time look at it is when one party has CONVEYED their land

Question 31

When in hypo one party has conveyed their land what we look at:

Answer 31

the BURDEN:

• does it run w/land
• touch & concern
• intent
• privity

Question 32

if the party enforcing covenant is NOT THE ORIGINAL PARTY

Answer 32

the BENEFIT of the covenant must have RUN w/the land

Question 33

If the party AGAINST whom enforcement is sought is NOT the ORIGINAL contracting party…..

Answer 33

the BURDEN of the covenant must have run w/the land

Question 34

Enforcer, not orig party

Answer 34

BENEFIT rwl

Question 35

Enforced upon,not orig party

Answer 35

BURDEN rwl

Question 36

Effects of conveying a real covenant

Answer 36

• grantee is benefitted or burdened by the promise upon conveyance
• usually grantOR is discharged form the benefit or burden upon conveyance (some juris. won’t let him if he was an orig promisor/ee)

Question 37

Most jurisdictions if you convey property then____?

Answer 37

your conveyance discharges you form liability

Question 38

Minority jurisdictions will keep the orig. party involved as guarantor under ____ __ ___.

Answer 38

privity of contract

Question 39

Consequence of tenant subletting?? (example)

Answer 39

• Landlord can convey reversion
• do promises in lease run w/land
• new landlord takes title
• the grantee is benefitted or burdened by the promise upon conveyance