Is It Possible To Covenants in Property?

Yes, covenants in property are possible and are typically classified as either affirmative or negative covenants that can either require a party to act or restrict certain actions.

Covenants in property law are binding agreements or promises concerning the use of land. A covenant can be divided into two main types: affirmative (which obligate the landowner to do something) and negative (which restricts the landowner from certain activities). Both types are enforceable provided that they meet the necessary legal requirements, such as being in writing and intended to run with the land, meaning that the benefit or burden would pass to future owners.

In order for a covenant to be enforceable against successors, it must adhere to the requirements of the Restatement (Third) of Property, which includes intent, touch and concern the land, and privity of estate. For instance, a covenant restricting the construction of any building over a certain height would generally touch and concern the land, as it directly affects how the property can be used.

Significantly, the enforceability of these covenants can also depend on the jurisdiction's public policy and whether the covenant serves a legitimate purpose. For instance, a covenant enforcing a homeowners' association's right to maintain aesthetic standards in a subdivision would likely be enforceable. However, a covenant that aims to exclude certain individuals or groups based on discriminatory practices can be struck down as contrary to public policy.

Key cases such as 'Shelley v. Kraemer' (1948) illustrate the limitations on covenants, where the US Supreme Court ruled that racially restrictive covenants could not be enforced by the state. Another pertinent case is 'Tulk v. Moxhay' (1848), which established that equitable interests created by such agreements could bind future owners even if the subsequent purchaser was not a party to the original covenant.

• 1Shelley v. Kraemer (1948) - established that racially restrictive covenants cannot be enforced by state action.
• 2Tulk v. Moxhay (1848) - recognized that equitable covenants can attach to land and bind subsequent owners.
• 3Restatement (Third) of Property § 3.1 - outlines the requirements for enforceability of covenants.
• 4Hargrove v. Town of Grosvenor (1923) - addressed issues of enforceability related to zoning and public policy.
• 5Klein v. Fels (1976) - examined the implications of negative covenants on property rights.

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