Covenants Running with the Land

Elements

For the burden to run to a successor-defendant, all elements must be satisfied:

1. Writing: the covenant must be in writing satisfying the Statute of Frauds
2. Intent: original parties intended the burden to run to successors (express “heirs and assigns” language)
3. Notice: successor had actual, constructive, or inquiry notice of the covenant
4. Touch and concern: covenant affects the use or value of the land (not a purely personal obligation)
5. Horizontal privity: original covenanting parties shared a qualifying legal relationship
6. Vertical privity: entire interest transferred from covenantor to successor

For the benefit to run, only intent, touch and concern, and notice are required — no privity needed.

Rule

A covenant running with the land is a promissory agreement that binds successors in interest to the original parties. It must be express (cannot be implied), and must satisfy several requirements to run against successors as a burden.

Elements

For the burden to run to a successor-defendant, all five elements must be satisfied:

1. Writing: the covenant must be in writing satisfying the Statute of Frauds
2. Intent: original parties intended the burden to run to successors (express “heirs and assigns” language)
3. Notice: successor had actual, constructive, or inquiry notice of the covenant
4. Touch and concern: covenant affects the use or value of the land (not a purely personal obligation)
5. Horizontal privity: original covenanting parties shared a qualifying legal relationship
6. Vertical privity: entire interest transferred from covenantor to successor

For the benefit to run, only intent, touch and concern, and notice are required — no privity needed.

Types

• Affirmative covenant: covenantor must do something on his own land (e.g., keep trees trimmed, pay homeowner association dues)
• Negative covenant: covenantor must refrain from doing something on his own land (e.g., build no taller than two stories)

Requirements for Burden to Run (Successor as Defendant)

1. Intent: original parties intended the covenant to bind successors (look for express language: “heirs and assigns”)
2. Notice: successor had actual, constructive, or inquiry notice of the covenant (governed by recording statutes)
3. Touch and concern: covenant relates to land use, not purely personal conduct; must affect the value or use of the land
4. Horizontal privity: original covenanting parties must have had a qualifying relationship — landlord-tenant, grantor-grantee, or receipt from a common grantor
5. Vertical privity: entire interest must be transferred from covenantor to successor (life estate to fee simple fails vertical privity)

Special Rule for Negative Covenants

A negative covenant can bind successors even without vertical privity.

Requirements for Benefit to Run (Successor as Plaintiff)

1. Intent
2. Touch and concern
3. Notice (if required) No horizontal or vertical privity required for benefit to run.

Horizontal Privity

• On its way out; abolished in several states
• Cannot be satisfied by neighbors making covenants directly; requires a qualifying transaction
• Can be manufactured through a “straw man” common grantor (malpractice trap for lawyers)

Discriminatory Covenants

• Racially restrictive covenants are unenforceable as a matter of constitutional law (Shelley v. Kraemer)
• Court enforcement of such covenants constitutes state action in violation of the 14th Amendment

Changed Conditions Doctrine

When the character of the neighborhood has changed so radically that the purpose of the covenant can no longer be served, the covenant will not be enforced by injunction. However, the covenant may remain enforceable if it still provides real and substantial value to the benefitted party.

Remedy

• Covenant at law: damages
• If covenant requirements not met, try equitable servitude (injunction)

Policy

• Freedom of contract vs. alienability: landowners should be able to plan for long-term land use, but covenants can become outdated restraints that reduce alienability and productive development
• Notice protection: requiring that successors have notice ensures they are not unwittingly bound by ancient covenants; recording statutes serve this function
• Uniform Law: the Restatement Third, Property (Servitudes) §§ 2.1–2.6 largely abolishes the privity and touch-and-concern requirements, treating all servitudes under a unified framework — adopted in some states, not yet nationally
• Changed conditions: serves as a safety valve when enforcement would be economically wasteful (covenant no longer achieves its purpose)

Policy

• Freedom of contract vs. alienability: landowners should be able to plan for long-term land use, but covenants can become outdated restraints that reduce alienability and productive development
• Notice protection: requiring that successors have notice ensures they are not unwittingly bound by ancient covenants; recording statutes serve this function
• Modern reform: the Restatement Third, Property (Servitudes) §§ 2.1–2.6 largely abolishes the privity and touch-and-concern requirements, treating all servitudes under a unified framework
• Changed conditions: serves as a safety valve when enforcement would be economically wasteful

Key Cases

• Shelley v. Kraemer — racial covenants as state action; cannot be judicially enforced
• Western Land Co. v. Truskolaski — changed conditions doctrine; covenant still provides real value despite neighborhood change
• Rick v. West — property remedy (injunction) for covenant; personality theory; W. refuses liability buyout

Covered In

• Property