The covenant – A promise to do or not do something related to land.
UNLIKE an easement because it is not a grant of a property interest, but rather a
contractual limitation or promise regarding land.
- *Restrictive covenants (negative covenants): A promise to refrain from doing something related to land. (“I promise not to build for commercial purposes on my land).
- Affirmative covenant: A promise to do something related to land. (“I promise to maintain our common fence”).
- Construing covenants and equitable servitudes: (on basis of remedy which P seeks)
- If P is seeking MONEY = covenant
- If P seeks INJUCTION = equitable servitude
- Covenants: One tract of land is burdened by the promise; and another is benefited. When will the covenant run with the land? When is it capable of binding successors?
- EX: Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property. A’s parcel is burdened by the promise. B’s parcel is benefited. Later, A sells her burdened parcel to A-1. B sells his benefited parcel to B-1. Now, A-1 has commenced manufacture of a steak sauce plant on the premises. B-1 wishes to proceed against A-1 for money damages. Will B-1 succeed? It depends on whether the facts support the conclusion that the burden and the benefit run.
- To answer – two separate contests must be resolved.
- Does the burden of A’s promise to B run from A to A-1? Always analyze burdened side first. It is harder for burdens to run than for benefits to run.
- Elements necessary for BURDEN to run: (WITHN)
- Writing – original promise between A and B had to be in writing
- Intent – original parties had to intend that covenant would run (courts generous)
- Touch and concern the land – the promise must affect the parties’ legal relations as landowners, and not simply as members of the community at large.
- Note: Covenants to pay $ to be used in connection with the land (homeowners’ association fees) and covenants not to compete do touch and concern the land.
- Horizontal and Vertical Privity – both needed for the burden to run.
- Horizontal privity: The nexus between the originally promising parties
- Requires that they be in succession of estate, meaning that they were in a grantor/grantee relationship, or landlord/tenant relationship or mortgagor/mortgagee relationship.
- Often hard to establish. It’s absence is the reason why some burdens won’t run.
- Vertical privity: the nexus between A and A1. It simply requires some non-hostile nexus, such as contract, devise, or descent.
- Only absent if A-1 acquired her interest through adverse possession.
- Notice – A-1 had notice of the promise when he took.
- Does the benefit of A’s promise to B run from B to B-1? (WI TV)
- Does B-1 have standing to make this claim?
- Writing: The original promise from A to B was in writing
- Intent: The original parties intended that the benefit would run.
- Touch and concern: The promise affects the parties as landowners (it pertains to the land).
- Vertical privity: Some non-hostile nexus between B and B-1.
- Note: Horizontal Privity is not required for the benefit to run