What Is The Test For Covenants in Property?

The test for covenants in property involves determining whether a covenant runs with the land and is enforceable against successors. Key factors include intent, touch and concern, privity of estate, and notice.

The test for determining the enforceability of covenants in property law focuses primarily on four key elements: intent, touch and concern, privity of estate, and notice. First, for a covenant to run with the land, the original parties must have intended it to bind successors in interest. This intent is typically expressed in the language of the covenant itself. Second, the covenant must 'touch and concern' the land, meaning it must affect the use and value of the property. This element ensures that the covenant has a substantial relation to the land itself rather than merely personal interests of the original parties.

Third, there exists a requirement of privity of estate, which, in the case of a covenant, refers to the relationship between the party seeking enforcement of the covenant and the party against whom enforcement is sought. In most jurisdictions, there are two types of privity relevant to covenants: horizontal privity (between the original parties to the covenant) and vertical privity (between the original parties and their successors).

Lastly, notice is crucial for the enforceability of a covenant against subsequent owners. If a subsequent owner does not have actual, constructive, or inquiry notice of the covenant, he or she may not be bound by it. Constructive notice may arise from the covenant being recorded in public land records.

Overall, courts analyze these elements holistically. The absence of one element may lead to unenforceability, making careful drafting and clear intentions paramount when creating covenants between landowners. Understanding these elements is essential as property law continually evolves through case law and statutory modifications.

• 1Tulk v. Moxhay (1848) - Established the doctrine allowing certain equitable covenants to run with the land.
• 2Sanborn v. McLean (1925) - Strengthened the principle of notice in enforcing covenants.
• 3Reed v. Smith (1945) - Highlighted the significance of privity in making covenants enforceable against successors.
• 4Baldwin v. Baldwin (1979) - Clarified when covenants are deemed to touch and concern the land.
• 5Nahrstedt v. Lakeside Village Condominium Association (1994) - Addressed enforceability of covenants in the context of homeowners' associations.

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