Real Covenants Study Outline

Real covenants are promises that run with the land, binding not only the original parties but also successors in interest. They typically concern the use of real property and are enforceable against future owners of the property. For a covenant to be classified as a real covenant, it must meet specific requirements: it should be in writing, intended to run with the land, and must touch and concern the land. A covenant touches and concerns the land if it affects the legal rights of the landowner in relation to their use and enjoyment of the property. Additionally, it must be enforceable by and against the parties involved, establishing a clear intention to bind successors in interest. The relevant law is often codified in the Restatement (Third) of Property, which provides further clarity on how covenants are viewed under modern real property law.

Creation of a real covenant typically involves a written instrument that articulates the promise between the parties. The writing must comply with Statute of Frauds requirements, which necessitates certain agreements involving real property to be in writing. Additionally, the intent to run with the land must be explicit in the language of the covenant. Courts also consider the doctrine of privity, which requires that the party enforcing the covenant and the party bound by it have a direct relationship concerning the land. There are two types of privity relevant: (1) privity of estate, which concerns the relationship between parties who hold an interest in the same parcel of land, and (2) horizontal privity, which refers to the relationship between the original covenanting parties. For modern application, courts may consider both types of privity but focus heavily on whether the covenant genuinely touches and concerns the property.

The enforcement of real covenants can present various challenges, particularly regarding the requirement of privity. When a successor in interest attempts to enforce a real covenant, the original parties must have adhered to the terms set forth in the covenant, and courts will typically review the burden and benefit aspects to determine enforcement. A real covenant can be enforced by a party who holds the benefit of the promise if the covenant touches and concerns the land, and privity exists. Additionally, there are defenses against enforcement that can be raised, such as waiver, abandonment, or changing circumstances that fundamentally alter the nature of the land or the parties’ relationship to it. Courts will also consider public policy implications, particularly when the enforcement of the covenant would result in unjust results or violate public interests.