Also known as: touches and concerns · touching and concerning · touched and concerned · touch & concern
Written by attorneys · grounded in primary & secondary sources — see below
A requirement for a covenant to run with the land under which the promise must affect the use, value, or enjoyment of the leased premises or benefited land rather than merely personal rights of the parties.
Theodore Tucker leased commercial space to Trevor Tate under a written agreement requiring Tucker to maintain exterior signage and lighting. Tucker later sold the building to Titan Industries without obtaining any release from Tate. When Titan failed to perform the maintenance, Tate sued Tucker for breach. Because the promise touched and concerned the leased premises and rested on privity of contract, Tucker remained liable after the transfer.
Trinity Pharmaceuticals leased laboratory space to Timothy Tang with an express covenant to maintain specialized ventilation systems. Tang assigned the lease to Torchlight Media, which took possession. Torchlight later refused to repair the systems, claiming the obligation was personal to Tang. Because the covenant touched and concerned the leased premises and the parties intended it to run, Torchlight became obligated upon entering privity of estate.
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Travis Tate leased retail space from Tara Tran under a lease requiring Tran to operate an on-site fitness center for tenants. Tran sold the building to Thunderbolt Motors. Travis Tate continued to pay rent but demanded performance of the amenity covenant from Thunderbolt Motors. Because the promise touched and concerned the leased premises and the benefit was intended to run, Thunderbolt Motors became obligated to the tenant.
A foreign corporation faced claims under the Alien Tort Statute for conduct occurring entirely abroad. Plaintiffs argued that the corporation's minimal U.S. contacts should allow jurisdiction because the claims touched and concerned U.S. territory. The court rejected the argument, holding that mere corporate presence did not satisfy the requirement with sufficient force.
Employees sought to certify a nationwide class against a large retailer alleging discriminatory practices. The court examined whether the claims touched and concerned a common policy or practice affecting all class members. Because the evidence showed only local variations rather than a uniform policy, the claims failed to satisfy the requirement for class treatment.
A covenant touches and concerns the leased premises when it affects the use, value, or enjoyment of the property itself rather than merely personal rights of the original parties. Examples include promises to pay rent, maintain the premises, or restrict use of the space. Such covenants can run with the land to bind successors in privity of estate.
Supporting sources
An original landlord remains liable on an express lease covenant that touches and concerns the premises if the obligation rests on privity of contract and the tenant has not released the landlord. The sale ends privity of estate but does not automatically discharge contractual duties. The tenant must affirmatively relieve the original landlord for liability to end.
Supporting sources
An assignee is bound when the covenant creates a burden that touches and concerns the leased interest, the original parties intended the burden to run, the assignee is not relieved by the landlord, and the assignment creates privity of estate. Operating covenants and maintenance promises typically meet the touch-and-concern test.
Supporting sources
The benefit of a landlord's promise runs to a successor tenant if the promise touches and concerns the leased interest, the parties intended the benefit to run, the transferor does not withhold the benefit, and the transferee enters privity of estate. Amenity and maintenance promises often satisfy this test.
Supporting sources
…within the United States, and the presumption does not bar claims based on such conduct. Pp. 4–9. (c) Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption. Corporations are often present in many countries, and it would be inappropriate to…