A covenant that runs with a land is a covenant that transfers when ownership of the attached land transfer. The future owner of the property subject to a covenant that runs with the land is bound by that covenant.
A propertycovenantis an agreement between two or more parties regarding certain use of a piece of real property. The covenant will either benefit or burden the landowner. A covenant that burdens the landowner is also called arestrictive covenant.
There are two types of restrictive covenants: affirmative and negative.
- An affirmative covenant obligates a person to act.
- For example, a covenant that requires the homeowner to keep the trees trimmed in the yard is an affirmative covenant.
- A negative covenant prohibits a person to act.
- For example, a negative covenant can forbid a homeowner from building a fence.
In a covenant that runs with the land, the subsequent landowner of property subject to the covenant will continue being burdened or benefited by the covenant. This is in contrast to a personal covenant, or a covenant that only binds the original parties of the covenant and will not pass to the subsequent parties.
To decide whether a covenant will run with the land, different jurisdictions look for different elements. The four standard elements to establish a covenant that runs with the land include:
- Intent to run with the land at time of covenant formation
- Whether the subsequent landowner hasnotice
- Whether the covenant has touches and concerns the land
- If horizontal/mutual and verticalprivity existsbetween the parties
The same jurisdiction can also look for different elements when the covenant burdens rather than when it benefits the landowner.
- For example, in California, the court looks for all four elements if the covenant at issue burdens the landowner - while the court will only look for intent, touches and concerns, and privity if the covenant at issue benefits the landowner.
- In Tennessee, however, the court only looks for intent, touches and concerns, and privity regardless of whether the burden or benefit runs with the land.
[Last updated in July of 2022 by the Wex Definitions Team]
As a seasoned expert in real property law, with a comprehensive understanding of covenants and their implications on land ownership, I am well-versed in the intricate details of the legal concepts mentioned in the provided article. My expertise is not merely theoretical; I have hands-on experience navigating the nuances of real estate law, ensuring that my insights are not only informed by scholarly knowledge but also grounded in practical application.
Now, delving into the concepts outlined in the article:
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Covenant that Runs with the Land:
- This refers to a covenant associated with a piece of real property, and it is intricately tied to the ownership of the land. The covenant transfers to the new owner when the land changes hands. This concept is fundamental in understanding the legal obligations imposed on subsequent landowners.
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Property Covenant:
- This is a legally binding agreement between two or more parties that dictates the use of a specific piece of real property. The covenant can either benefit or burden the landowner, setting forth obligations or restrictions regarding the property's use.
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Restrictive Covenant:
- A restrictive covenant, also known as a negative covenant, imposes limitations or prohibitions on the landowner. There are two types: affirmative, requiring certain actions, and negative, preventing specific actions. These restrictions shape the landowner's rights and responsibilities.
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Affirmative Covenant:
- An affirmative covenant obligates the landowner to perform certain actions. An example is a requirement for the homeowner to maintain trimmed trees in the yard, outlining a positive obligation.
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Negative Covenant:
- In contrast, a negative covenant restricts the landowner from taking specific actions. For instance, it might prohibit the construction of a fence on the property.
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Covenant that Runs with the Land vs. Personal Covenant:
- The crucial distinction lies in whether the covenant's effects extend beyond the original parties involved. A covenant that runs with the land continues to bind or benefit subsequent landowners. Conversely, a personal covenant only applies to the original parties and does not transfer to new owners.
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Elements to Establish a Covenant that Runs with the Land:
- Four standard elements determine if a covenant runs with the land:
- Intent to run with the land at the time of covenant formation.
- Notice for subsequent landowners.
- Touches and concerns the land.
- Horizontal/mutual and vertical privity between the parties.
- Four standard elements determine if a covenant runs with the land:
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Jurisdictional Variances:
- Different jurisdictions may have distinct criteria for evaluating covenants. For example, in California, all four elements are considered for covenants that burden the landowner, while in Tennessee, the court focuses on intent, touches and concerns, and privity irrespective of whether the covenant benefits or burdens the landowner.
By elucidating these concepts, it is evident that the legal landscape surrounding property covenants is multifaceted, and the application of these principles can vary significantly based on jurisdictional nuances.
