Real Covenants Running with the Land

Real covenants are one of the most powerful and enduring tools in property law, allowing landowners to shape the future use and character of their neighborhoods, subdivisions, and commercial developments for generations. Unlike a simple contract between two people, a properly created real covenant "runs with the land," meaning it can bind and benefit subsequent owners long after the original parties have left. Understanding this mechanism is essential for anyone involved in real estate, from developers and homeowners to attorneys and planners, as it creates a private framework of land-use rules that operates alongside public zoning.

The Foundation: What is a Real Covenant?

A real covenant is a promise, usually written in a deed or a separate recorded document, that concerns the use or enjoyment of land. Its defining characteristic is that it can "run with the land" at law. This means the duty to obey the promise (the burden) and the right to enforce it (the benefit) can pass automatically to later owners of the respective properties. For example, if Owner A sells a lot to Owner B with a covenant that the land will only be used for residential purposes, Owner A can not only enforce that promise against Owner B but, if the covenant runs, also against anyone who later buys the lot from B. Similarly, if the benefit runs, a neighbor who gains the right to enforce the covenant can also pass that enforcement right to a future buyer of their own property.

This concept creates stability and allows for planned communities. However, because these promises can restrict property rights far into the future, the law imposes strict requirements before it will allow a covenant to run. Courts are historically cautious, as they are essentially enforcing a private agreement against someone who never personally agreed to it.

The Five Requirements for a Covenant to Run at Law

For a real covenant's burden to run with the land and bind a successor owner, five distinct requirements must be met. Failure to satisfy any one of them means the covenant is merely a personal contract between the original parties.

1. Intent: The Promise Must Be Intended to Run

The original parties must intend for the covenant to bind future owners. This intent is almost always found in the language of the document itself. Precise wording is key. Phrases like "successors and assigns," "heirs," "this covenant shall run with the land," or "binding upon future owners" clearly demonstrate the necessary intent. Courts interpret the document as a whole, but without clear language showing an intent to bind successors, the covenant will be deemed personal.

2. Writing: The Statute of Frauds

Because it concerns an interest in land, a covenant must be in writing to be enforceable. This satisfies the Statute of Frauds. The written document—typically the deed or a declaration of covenants—must be signed by the party to be bound (the covenantor).

3. Touch and Concern: The Promise Must Relate to the Land

This is the most critical and nuanced requirement. The promise must touch and concern the land, meaning it must affect the parties as landowners and not merely as individuals. The covenant must physically or economically impact the use, value, enjoyment, or development of the property itself.

• Burden Touches and Concerns: The promise must limit what the owner of the burdened land can do with the property (e.g., "no commercial use," "maintain a white fence"). It restricts the land's utility.
• Benefit Touches and Concerns: The right to enforce must be tied to ownership of a specific parcel of benefited land, making that land more usable or valuable (e.g., a neighbor's right to enforce a "single-family home" covenant preserves the residential character of their own lot).

A promise to pay money (like a homeowners' association fee) can touch and concern if the funds are used for common property upkeep that benefits all lots. A purely personal promise, like "I will sell you my car," does not touch and concern land, no matter where it is written.

4. Privity: The Legal Relationship

The law requires two types of privity for a burden to run at law. Horizontal privity exists between the original parties at the time the covenant is created. It is typically established if they are in a successive relationship of estate, such as grantor-grantee (one sells to the other) or landlord-tenant. Merely being neighbors (adjacent landowners) is generally insufficient for horizontal privity at common law. Vertical privity refers to the relationship between an original party and a successor owner. For the burden to run, the successor must hold the same estate as the original covenantor. If the original owner had a fee simple and sells it, vertical privity exists with the buyer. If the original owner is a tenant and assigns their lease, vertical privity exists with the new tenant. However, a trespasser or adverse possessor lacks vertical privity.

5. Notice: The Successor Must Know

The successor owner of the burdened land must have notice of the covenant. This protects innocent buyers. Notice can be:

• Actual Notice: The buyer is directly told about the covenant.
• Constructive Notice: The covenant is recorded in the chain of title in the public land records. A buyer is presumed to have seen all recorded documents, whether they actually did or not.
• Inquiry Notice: Conditions on the land (like a shared driveway or a uniform fence) would lead a reasonable person to investigate possible restrictions.

If a buyer has no notice—actual, constructive, or inquiry—they take the land free of the covenant's burden, even if all other requirements are met.

Remedies: Law vs. Equity

The remedy available depends on whether you are enforcing a real covenant (at law) or its close cousin, an equitable servitude.

• Real Covenant (Legal Remedy): If all five requirements are met, the successful plaintiff is entitled to damages for past harm caused by the breach (e.g., loss in property value).
• Equitable Servitude (Equitable Remedy): Equitable servitudes evolved to enforce land-use promises where the requirements for a real covenant, particularly horizontal privity, were not strictly met, but the intent, touch and concern, and notice were clear. The primary remedy for an equitable servitude is an injunction—a court order to stop a violation or undo a change (e.g., ordering the removal of an illegally built shed).

Most modern cases involving land-use restrictions are brought as actions to enforce equitable servitudes, as the injunction is often the more valuable remedy. The key distinctions are the relaxed privity requirement and the type of relief sought.

Common Pitfalls

Confusing the requirements for real covenants and equitable servitudes is a major source of error. Remember, if you seek damages for a past breach, you must prove all requirements for a real covenant, including horizontal privity. If you seek an injunction to stop a continuing or future violation, you are in equity and generally only need to prove intent, touch and concern, and notice.

Another frequent mistake is misapplying touch and concern. Students often ask if a restriction "benefits" someone, but the legal test is whether it benefits or burdens the land. A promise that merely provides a personal, financial advantage to a neighbor without improving their land's use does not touch and concern. For example, a covenant giving a neighbor the right of first refusal to buy the property is often ruled not to touch and concern the neighbor's land; it only benefits them personally as a potential buyer.

Finally, overlooking the notice requirement can be fatal. A perfectly crafted covenant that is never recorded may be unenforceable against a subsequent bona fide purchaser who checks the records and finds nothing. Recording is not a formal requirement for creation, but it is absolutely essential for practical enforcement against future owners.

Summary

• Real covenants are promises about land use that can "run with the land," binding and benefiting subsequent owners, creating long-term, private land-use regimes.
• For the burden to run at law and bind a successor, five elements are required: intent (in writing), touch and concern, horizontal privity (between original parties), vertical privity (with successor), and notice to the successor.
• The touch and concern doctrine is the core substantive filter, ensuring the promise affects the land's use, value, or enjoyment, not just the original parties personally.
• The primary legal remedy for a breached real covenant is damages, while the equitable remedy of an injunction is typically pursued under the related doctrine of equitable servitudes, which has relaxed privity requirements.
• Proper recording of covenants is critical to provide constructive notice to the world, protecting their enforceability against future purchasers of the burdened land.