REAL COVENANTS

When should you discuss a real covenant on an essay?

• When a landowner promises to do or not do something concerning land, and a later owner seeks to enforce that promise for money damages

What is a Real Covenant?

• Written promise concerning land that may bind or benefit future owners if the required elements are satisfied

• Remedy is damages

What is the primary remedy for breach of a real covenant?

• Money damages

What is the IRAC approach for analyzing a real covenant (4 questions to answer)

• Was a covenant created?

• Does the burden run?

• Does the benefit run?

• What remedy is available?

How is a real covenant created?

• Written agreement which satisfies SOF

What types of promises may be real covenants?

• Affirmative promises

• Negative (restrictive) promises

What elements must be satisfied for the burden of a real covenant to run with the land? INTVH

• Intent

• Notice

• Touch and Concern

• Vertical Privity

• Horizontal Privity

What does “intent” mean in a real covenant?

• Original parties intended that successors be bound

• Look for words like heirs, assigns, and successors if expressed.

• Look for purpose of covenant for implied.

Under a real covenant, what kind of notice is required for the burden to run?

• Success must have notice and it may be actual, constructive, or inquiry.

What does “touch and concern the land” mean in a real covenant?

• The covenant must affect the legal rights, value, use, or enjoyment of the land itself, not merely create a personal obligation.

What is vertical privity in a Real Covenant?

• Privity created when the successor succeeds to the original party’s estate

• Grantor → Grantee relationship

Real Covenants - What is horizontal privity?

• Privity created when there is co-ownership in a specific tract of land between promisor and promisee

• Grantor → Grantee

  • Landlord → Tenant

What is required for the burden to run, but not the benefit?

• Horizontal Privity

Benefits Running With the Land: What elements are required for the benefit of a real covenant to run with the land? ITV

• INTENT

• TOUCH AND CONCERN

• VERTICAL PRIVITY

  • Notice and Horizontal Privity are not required for the benefit

Benefits Running With the Land: Why is the benefit easier to transfer than the burden?

• Benefit is EASIER to transfer than BURDEN because BENEFIT does NOT require:

  • Notice or

  • Horizontal privity

Touch and Concern: When does a covenant touch and concern the land?

• When it directly affects the land’s

  • Value

  • Use

  • Enjoyment or

  • Occupation

Which promises usually satisfy the touch-and-concern requirement?

• Building restrictions

• Maintenance

• Shared roads

• Fence obligations

• Use restrictions

Which promises usually do not touch and concern the land in real covenants?

• Purely personal promises unconnected to use, enjoyment or value of property (agreeing to tutor child for services)

In real covenants, what is the easiest way to remember horizontal privity vs vertical privity?

• Horizontal = Relationship between original parties who created covenant/restriction

• Vertical = Transfer from one owner to next owner (successors interest)

Which is harder to establish: burden or the benefit?

BURDEN because it requires:

• Notice + Horizontal privity

BENEFIT does not require this.

Why does the law under real covenants make burden harder to transfer?

• Because courts are cautious about imposing obligations to later purchasers.

Review the elements for burden and benefit of a real covenant - which of the following are required for Burden vs Benefit (Intent? Notice? Touch and Concern? Vertical Privity? Horizontal Privity?

Burden	Benefit
Intent	Intent
Notice	—
Touch & Concern	Touch & Concern
Vertical Privity	Vertical Privity
Horizontal Privity	—

If a later purchaser wants money damages for breach of a land-use promise, what should you analyze?

• Analyze if a REAL COVENANT RUNS with the land BY DISCUSSING BURDEN AND BENEFIT

Q: What is the biggest difference between a real covenant and an equitable servitude?

• Real Covenant → Money damages

• Equitable Servitude → Injunction

Q: If an essay asks for an injunction instead of damages, should you analyze a real covenant?

Probably not.

You should usually analyze an equitable servitude (restricts how land can be used), which is enforced by injunction.

Which doctrine requires horizontal privity? What about equitable servitudes?

• The doctrine of real covenants requires horizontal privity

• Real covenants do not

Q: What is the most common essay mistake involving real covenants?

Students analyze only whether the covenant exists.

Instead, analyze separately:

• Creation

• Burden

• Benefit

• Remedy

What mnemonic helps you remember the burden elements? What are they? INTVH

INTVH

• Intent

• Notice

• Touch & Concern

• Vertical Privity

• Horizontal Privity

Q: What mnemonic helps you remember the benefit elements? What are they? ITV

• Intent

• Touch & Concern

• Vertical Privity

On an exam, which remedy should immediately make you think "real covenant" analysis?

• MONEY DAMAGES

Memory Trick (One You'll Actually Remember)

Think of Real Covenants like a contract lawsuit:

• You are asking:

  • "Can I sue the new owner for money?"

That is why the doctrine is stricter—it requires privity and, for the burden, notice.

On an exam, which remedy should immediately make you think "equitable servitude"?

• INJUNCTION

Equitable Servitudes—is much more flexible because equity is primarily concerned with stopping unfair land uses through injunctions, not awarding damages. That's why many of the privity requirements disappear.