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Real Covenant Lawyers

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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 Real Estate Lawyer?

Real covenants affect your rights as a property owner. A real estate lawyer can help you determine the extent of your rights to your property and can help you defend any attack for breaching a real covenant.

Photo of page author Peter Clarke

, LegalMatch Content Manager

Last Modified: 06-10-2014 03:46 PM PDT

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