Real Covenant - Covenants Related To Land - Requirements

Requirements

The covenant will typically be written in the deed, and must be in writing due to the statute of frauds. Although scholars have argued that some of the following should be significantly relaxed, in order for the burden to run with the land the following must apply:

• The covenant must be in writing to satisfy the Statute of Frauds.
• The original parties to the agreement must have intended that successors be bound by the agreement.
• A subsequent owner must have had actual notice, inquiry notice, or constructive notice (record) of the covenant at the time of purchase.
• The covenant must touch or concern the land. The covenant must relate to the use or enjoyment of the land.
• There must be horizontal privity between the original parties.
  • Horizontal privity is found if, at the time the original parties enter into the agreement, those parties share some interest in the subject land independent of the covenant (e.g. landlord and tenant, mortgagee and mortgagor, or holders of mutual easements). Individual state statutes can alter the requirements of horizontal privity of estate. Privity may be instantaneous and mutual; instantaneous privity is present when the restrictive covenant is within the deed initially conveyed from the grantor to the grantee.
• There must be strict vertical privity of estate.
  • Vertical privity characterizes the relationship between the original party to the covenant and the subsequent owner. To be bound by the covenant, the successor must hold the entire estate in land held by the original party (strict vertical privity of estate). Note that because strict vertical privity is required for a burden to run, a lessee could not have a burden enforced against them. However, a benefited party could sue the owner of the reversion of the estate, and the owner could possibly sue the lessee for waste.