Also known as: real covenants · covenant running with the land
Written by attorneys · grounded in primary & secondary sources — see below
An agreement concerning land use that binds successors to the burdened estate at law when the original parties intend the promise to run, the promise touches and concerns the land, and privity of estate exists between the covenanting parties.
Renata Russo sold a parcel to Ridgeway Partners under a recorded deed requiring the buyer and all future owners to maintain the lot as single-family residential. Ridgeway Partners later conveyed the parcel to a buyer who planned a commercial building. The buyer took subject to the restriction because the original deed manifested intent that the burden run with the land and the restriction touched and concerned the parcel's use.
Rebecca Ross conveyed land to Roberto Reyes subject to a recorded covenant barring sale to nonwhite buyers. Reyes later attempted to sell to a buyer of color. The covenant could not be enforced because courts refuse to recognize racially restrictive covenants as running with the land under the Equal Protection Clause.
Select any source to read its text and confirm it supports the definition.
Rina Rahman granted an option to purchase land to Regal Apparel under a recorded instrument that did not expressly bind successors. Regal Apparel assigned the option to a third party. The option did not run with the land because the instrument lacked language showing intent that the burden attach to future owners of the burdened parcel.
The covenant must be in writing. The original parties must intend that the burden or benefit run to successors. The covenant must touch and concern the land. Horizontal privity must exist between the original covenanting parties. Vertical privity must exist between an original party and the successor. The successor must have notice of the covenant.
Supporting sources
A real covenant requires horizontal privity and a writing under seal and is enforced at law by damages. An equitable servitude requires only notice and is enforced in equity by injunction. Modern law has largely eliminated these distinctions by treating both as servitudes that run with the land when intent and other basic requirements are met.
Supporting sources
Yes. Affirmative covenants that require the burdened owner to perform an act, such as maintaining a shared facility, satisfy the touch-and-concern requirement when the act directly affects the use or value of the land. Courts enforce such covenants against successors when the other running elements are present.
Yes. Horizontal privity is required only for the burden to run. The benefit may run without horizontal privity when the other elements are satisfied. This distinction reflects the traditional view that burdens on alienability warrant stricter scrutiny than benefits.
…was required to pay Symphony any unpaid rent on the closing date. Finally, section 6 established that the option constituted "a covenant running with the land, inuring to the benefit of heirs, successors and assigns of Broadwest.” Symphony ultimately obtained a tax exemption for the theater. In the summer of 1981, Broadwest sold and assigned its…