Covenant that runs with the land - sustany/dvg GitHub Wiki

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 property�covenant�is 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 a�restrictive 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:�

  1. Intent to run with the land at time of covenant formation
  2. Whether the subsequent landowner has�notice
  3. Whether the covenant has touches and concerns the land
  4. If horizontal/mutual and vertical�privity exists�between 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.