Real covenants are promises that landowners make regarding the use of their land. They can be either affirmative promises to do something with the land (e.g. maintain an English garden on the land in perpetuity) or a negative promise not to do something (e.g. not to erect a cell phone tower on the property). They affect a landowner’s property rights.  Real covenants consist of two elements, the burden and the benefit.

What Is the Burden of a Real Covenant?

The burden of a real covenant describes a land owner’s duty either to perform the promise if the covenant contains a promise to do something or not to do something if the covenant is a negative promise. For example, suppose A owns a lake and its shoreline near B’s house. If A promises B not to allow development on the shoreline, A now has a duty to do as he promises in the covenant. In this case, the “burden” is A’s inability to allow development on the shore around his lake. 

What Is the Benefit of a Real Covenant?

The benefit of a real covenant describes a land owner’s right to enforce the promise in the covenant. Using the same example as the one above, B has the right to enforce A’s promise. The “benefit” in this situation is B’s ability to limit what A does with the land, which in this case is B’s ability to prevent development on the shoreline of the lake.

Is a Real Covenant Legally Enforceable if the Land is Sold to Someone Else?

Even if the land changes ownership, it’s still possible for a real covenant to survive and have legal force and effect. An essential element of real covenants is their ability to run with the land. In other words, whoever owns the land can be legally compelled to honor a real covenant even if it was made by a previous owner. in order for either the burden or the benefit of a real covenant to remain enforceable after land has been conveyed, certain requirements must be met.

What Is Required for the Burden of a Real Covenant to Run?

There are five requirements that must be met if the burden of a real covenant is to run with the land and remain legally enforceable:

  1. Written form: the real covenant must be expressed in writing in some kind of document, e.g. a contract, a clause, or a separate document;
  2. Intent: the original promisor and promisee must have intended for the burden/benefit to run or remain enforceable by future owners of the land. This is usually shown within the promise and whether it is directed towards a particular person or is generally applicable. 
    • For example, suppose X makes a promise to Y stating, “I promise Y to maintain an English garden on my property.” Here, the promise is directed only to Y.  In contrast, suppose X says, “I promise to maintain an English garden on my property.”  Here, the promise is not directed to any particular person, and therefore it’s possible that the promise was meant to run.
  3. Touch and Concern: the real covenant must directly relate to the use and enjoyment of the real property.
  4. Horizontal Privity: this refers to a special relationship that must exist between the original promisor and the promisee. The nature of the relationship that must be shown varies from state to state, but usually involves showing that both have a mutual interest in the land.
  5. Vertical Privity: the person who is burdened by the promise must own the EXACT same piece of land as the promisor under the original real covenant.

What Is Required for the Benefit of a Real Covenant to Run?

In order for the benefit of a real covenant to run, four requirements must be met. The first three are the same as the requirements for a burden to run, i.e. the form, intent, and touch and concern. The last requirement, verticality, means that the person enforcing the benefit must own some piece of the land owned by the promisee under the original real covenant.

There are other rights to use and enjoy property that may pass with the land when it is conveyed to a new owner.  These incidental rights are different from covenants, because they may not be in written form. It is important to understand these incident rights also as a conflict about the use and enjoyment of property may involve these rights as well as rights expressed in covenants.

How Can a Lawyer Help Me?

If someone is suing you to restrict your ability to use your land as you want, you should contact an experienced property attorney immediately to assert your rights. A lawyer can determine whether the burden of a real covenant runs on your land, and whether or not the person suing you has a right to enforce the benefit of any real covenant.  An experienced attorney should have handled lawsuits and knows how to manage the legal technicalities of the process.

If you would like to establish a real covenant to run with your property or the property of another in which you have an interest, a property attorney can help make sure that your real covenant satisfies all the requirements identified above. In any case, due to the number of abstract legal terms and principles involved, it is best to consult an attorney whenever dealing with real covenants. An experienced property attorney should understand what is needed to establish a real covenant that will remain legally enforceable by future owners.