Real Covenants are promises that concern the use of land. They can either be an affirmative promise to do something with the land (e.g. build a front gate) or a negative promise to not do something (e.g. not use the land for public events). Real Covenants consist of two elements: the burden and the benefit.
The burden of a real covenant describes the promissor’s duty to perform the promise. For example, suppose A owns a lake near B’s house. If A promises B not to use the lake for commercial purposes (e.g. sell lake usage to fishermen), A now has a duty to honor his promise to B. In this case, the "burden" is A’s inability to use his lake for commercial purposes.
The benefit of a real covenant describes the promisee’s right to enforce the promise. Using the same example above, B has the right to enforce A’s promise. The "benefit" here is B’s power to limit what A does with his land, which in this case is preventing commercial use of the lake.
Even if the land changes ownership, it’s still possible for a real covenant to remain. A key feature of real covenants is their ability to run with the land. In other words, whoever owns the land can be forced to honor a previously made real covenant. But in order for either the burden or the benefit of a real covenant to run, a few requirements must be met.
There are five requirements that must be met before the burden of a real covenant can run:
- Form: The real covenant must be in some form of writing (e.g. contract, clause, or a separate document)
- Intent: The original promissor and promisee must have intended for the burden/benefit to run or pass down to future owners of the land. This is usually indicated by whether or not the promise is directed towards a particular person or is generally applicable.
- For example, suppose X makes a promise to Y stating, "I promise Y to build a picket fence around my farm." Here, the promise is directed solely to Y. In contrast, suppose X says, "I promise to build a picket fence around my farm." Here, the promise is not directed at a particular person, and therefore it’s possible that the promise was meant to run.
- Touch and Concern: The real covenant must relate to direct use or enjoyment of the land.
- Horizontal Privity: This refers to a special relationship that exists between the original promisor and the promisee, which can vary from state to state.
- Vertical Privity: The person being burdened by the promise must own the EXACT same piece of land as the promisor under the original real covenant.
In order for the benefit of a real covenant to run, four requirements are needed. The first three are the same form, intent, and touch and concern requirements necessary for the burden of a real covenant to run. The last requirement, verticality, only requires that the person enforcing the benefit own some piece of the land owned by the promisee under the original real covenant.
If someone is suing you to restrict usage of your land, you should contact an experience property attorney immediately to assert your rights. A lawyer can determine whether the burden of a real covenant is running on your land, and whether or not the person suing you has a right to enforce the benefit of any real covenant.
If you are planning to enter into a real covenant that you would like to run with the land, a property attorney can help make sure that your real covenant satisfies all the requirements discussed above. In any case, due to the number of abstract legal terms and priniciples involved, it is best to consult an attorney whenever dealing with real covenants.