Covenant Running with the Land

A real covenant (or covenant running with the land) is a promise respecting the use of land that is enforceable at law by and against subsequent owners of the land, not just the original contracting parties. When a covenant 'runs with the land,' it means that the benefits and burdens of the covenant pass automatically to successors in interest, so that a subsequent purchaser of the burdened property must comply with the covenant and a subsequent purchaser of the benefited property can enforce it.

For a covenant to run with the land at law, several requirements must be met. First, the original parties must have intended the covenant to bind successors (often indicated by language such as 'this covenant shall run with the land' or 'binding on heirs and assigns'). Second, the covenant must 'touch and concern' the land, meaning it must relate to the use, enjoyment, or value of the land rather than being a purely personal obligation. Third, there must be horizontal privity between the original covenanting parties (they must share some independent legal relationship regarding the land, such as grantor-grantee). Fourth, there must be vertical privity between the original party and the successor (the successor must hold the same estate as the original party).

Real covenants are distinguished from equitable servitudes, which are enforceable in equity through injunctive relief and have somewhat relaxed requirements (notably, horizontal privity is not required for equitable servitudes). The modern trend, reflected in the Restatement (Third) of Property: Servitudes, is to merge the concepts of real covenants and equitable servitudes into a unified category of 'covenants' and to simplify the privity requirements.