What is a Real Covenant?
A real covenant in property law is an agreement or contract between two or more parties that limits their use of property. A real covenant benefits and burdens the original parties to the agreement as well as their predecessors. A positive covenant is a covenant where either party agrees to do something, and a restrictive covenant is a covenant where either party agrees not to do something. How is a Covenant that Runs with the Land Created?
A real covenant that runs with the land (is enforceable on subsequent owners of the property) must meet six requirements: - The covenant must be in writing
- The original parties to the covenant must intend to bind any subsequent owners
- The covenant must relate to the direct use of the land
- A relationship between the original parties to the covenant must exist
- A relationship between the original covenanting party and that party¿s successor in interest must exist
- Subsequent owners must have notice of the covenant ¿ for example, if the covenant is recorded in the deed of the property, then the subsequent owner will have notice of the covenant
A Few Examples of Real Covenants
The following examples of covenants are real covenants because they meet the six requirements outlined above: - Restrictions on height, size, shape, and style of new buildings or structures:
- No building shall be erected over 30 feet tall
- No building shall be painted a florescent color
- Restrictions on the type of uses of the land:
- No motor vehicles are allowed on the property
- No fishing or hunting on the property
All real covenants based on race have been declared unconstitutional.
How to Terminate Real Covenants?
There are several ways a real covenant can be terminated: - Abandonment ¿ A real covenant is abandoned when the party that benefits from it chooses to stop receiving the benefit
- Changed conditions ¿ A real covenant is unenforceable if circumstances have changed so drastically that no benefit can be drawn from the real covenant
- By agreement ¿ The parties bound by the covenant can always agree to end the covenant or can negotiate to end the covenant
What Happens if Someone Breaches a Real Covenant?
The measure of damages for breach of a real covenant is generally the difference between the fair market value of the benefited property before the defendants breach and after the defendant¿s breach. Do I Need a Lawyer to Help Me with My Real Covenant problem?
Real covenants affect your rights as a property owner. A real estate attorney can help you determine the extent of your rights to your property and can help you defend any attack for breaching a real covenant. |
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