Real Covenant to Run with Land
MUST TOUCH AND CONCERN THE LAND; COVENANTING PARTIES MUST HAVE
A SHARED INTEREST IN LAND AND INTEND TO BIND SUCCESSORS
REAL COVENANT
COVENANTOR
MUST TOUCH AND CONCERN THE LAND
COVENANTEE
BURDENED
ESTATE
HORIZONTAL PRIVITY: SHARED INTEREST @ TIME OF K
BENEFITED
ESTATE
INTENT TO BIND SUCCESSORS
Mutual Covenant Between Neighbors
NO SHARED INTEREST IN LAND; ENFORCEABLE AS CONTRACT BETWEEN
ORIGINAL PARTIES; SUCCESSORS MAY ENFORCE AS EQUITABLE SERVITUDE
COVENANT AGREEMENT
NEIGHBOR 1
MUTUAL RESTRICTIONS ON USE OF LAND
NO HORIZONTAL PRIVITY: NO SHARED INTEREST
PRIVITY OF CONTRACT: RIGHTS & DUTIES
NEIGHBOR 2
Covenant
COVENANTS THAT DO NOT TOUCH & CONCERN THE LAND ARE
STILL ENFORCEABLE AS CONTRACT BETWEEN ORIGINAL PARTIES
COVENANT AGREEMENT
COVENANTOR
MAY BE PART OF ANY VALID CONTRACT
PRIVITY OF ESTATE NOT NECESSARY
PRIVITY OF CONTRACT: RIGHTS & DUTIES
COVENANTEE
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Real Covenant
Burden Running with Land
GRANTEE MUST RECEIVE SAME INTEREST IN LAND & NOTICE OF COVENANT
COVENANTOR
& GRANTOR
BURDENED
ESTATE
COVENANT AGREEMENT
MUST TOUCH AND CONCERN THE LAND
HORIZONTAL PRIVITY OF ESTATE
INTENT TO BIND SUCCESSORS
COVENANTEE
BENEFITED
ESTATE
MAY ENFORCE
COVENANT
CONVEYANCE OF BURDENED ESTATE
VERTICAL PRIVITY: ENTIRE INTEREST TRANSFERED
BURDENED GRANTEE ON NOTICE OF COVENANT
GRANTEE
NO EXPRESS AGREEMENT
BURDENED
ESTATE
INTENT TO BIND & NOTICE TO GRANTEE
BUT COVENANT IS ENFORCEABLE
HORIZONTAL & VERTICAL PRIVITY
BOUND BY
THE COVENANT
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Real Covenant
Benefit Running with Land
GRANTEE NEED NOT RECEIVE SAME INTEREST OR NOTICE
COVENANT AGREEMENT
COVENANTOR
MUST TOUCH AND CONCERN THE LAND
BURDENED
ESTATE
HORIZONTAL PRIVITY: SHARED INTEREST
INTENT TO BIND SUCCESSORS
BOUND BY COVENANT
COVENANTEE
& GRANTOR
BENEFITED
ESTATE
NO NOTICE TO GRANTEE NECESSARY
FULL VERTICAL PRIVITY NOT NECESSARY
BUT COVENANT IS ENFORCEABLE
FULL VERTICAL PRIVITY NOT NECESSARY
CONVEYANCE OF ANY INCLUDED ESTATE
NOTICE TO GRANTEE NOT NECESSARY
NO EXPRESS AGREEMENT
GRANTEE
BENEFITED
ESTATE
MAY ENFORCE
THE COVENANT
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Equitable Servitude
ONE OR MORE ELEMENTS OF A REAL COVENANT MISSING; AGREEMENT
MAY STILL BE ENFORCED BY INJUNCTION AS AN EQUITABLE SERVITUDE
COVENANTOR
& GRANTOR
BURDENED
ESTATE
COVENANT AGREEMENT
MUST TOUCH AND CONCERN THE LAND
COVENANTEE
HORIZONTAL PRIVITY NOT NECESSARY
INTENT TO BIND MAY BE IMPLIED
BENEFITED
ESTATE
MAY ENFORCE
BY INJUNCTION
FULL VERTICAL PRIVITY NOT NECESSARY
TRANSFER OF ANY INCLUDED INTEREST
NOTICE TO GRANTEE MAY BE BY IMPLICATION
GRANTEE
BURDENED
ESTATE
MAY BE ENJOINED
FROM VIOLATING
THE COVENANT
NO EXPRESS AGREEMENT
BUT ENFORCEABLE AS EQUITABLE SERVITUDE
HORIZONTAL & VERTICAL PRIVITY NOT NECESSARY
INTENT & NOTICE MAY BE IMPLIED
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Implied Negative Reciprocal Servitude
WHEN THERE IS A COMMON PLAN OR SCHEME FOR A HOUSING DEVELOPMENT,
RESTRICTIVE COVENANTS MAY BE ENFORCED AS EQUITABLE SERVITUDES
LOT
1
DEVELOPER
Enforcing Against
a Later Buyer
LAND COVENANT
EARLY
BUYER
LOT 1
HORIZ. PRIVITY
INTENT TO BIND
LESSER ESTATE
NO VERT. PRIVITY
NOTICE TO GRANTEE
Developer owns large tract and
sells parcels to homebuyers, with
restrictive covenants in
accordance with a common plan.
Early Buyer can enforce the
covenant by injunction, even
though Developer conveyed a
lesser estate to Later Buyer.
LATER
BUYER
LOT 2
ENFORCEABLE AS
EQUITABLE SERVITUDE
DESPITE NO VERT. PRIV.
INTENT & NOTICE
Enforcing Against
an Early Buyer
Enforcing Against
Non-Covenantor
When a Later Buyer wishes to enforce the
covenant against an Early Buyer, there is no privity
of any kind because Developer sold Lot 1 before
she covenanted with Later Buyer. However, the
covenants will be reciprocally enforceable.
Developer sells remaining land to an industrial
concern, and does not include the restrictive
covenant in the deed. However, the covenant
may still be enforced as an equitable servitude, on
the theory that the purchaser is on inquiry notice.
EARLY
BUYER
LOT 1
LAND COVENANT
DEVELOPER
HORIZ. PRIVITY
EARLY
BUYERS
NO COVENANT
VERT. PRIVITY
INQUIRY NOTICE
NOTICE TO GRANTEE
ENFORCEABLE SERVITUDE
DESPITE NO PRIVITY
INTENT TO BIND
LAND COVENANT
DEVELOPER
LOT
2
HORIZ. PRIVITY
INTENT TO BIND
LATER
BUYER
LOT 2
PURCHASER
ENFORCEABLE AS
EQUITABLE SERVITUDE
DESPITE NO VERT. PRIV.
INTENT & NOTICE
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