promise which is enforceable not only between the original parties, but also between successors of...
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Real Covenants
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Definition
Promise which is enforceable not only between the original parties, but also between successors of either party because they are now the new owners of the land.
The future owners are bound even though they did not agree.
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Distinguish from:
1. Assignment of contract rights
2. Affirmative easements
3. Negative easements
4. Conditions
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Elements of Real Covenant
1. Enforceable promises under contract law
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Elements of Real Covenant
2. Intent for Promise to Run with the Land
Common law – “assigns”
Modern law – special terminology not needed
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Elements of Real Covenant
3. “Touch and Concern” land requirement
Connection between promise and land▪ Burden touches land (impacts land, not
landowner personally)▪ Benefit touches land (makes land more
valuable, not landowner personally)
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Elements of Real Covenant
3. “Touch and Concern” land requirement
How satisfy?
▪ Both benefit and burden (common law)
▪ Just burden
▪ Just benefit
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Elements of Real Covenant
4. Privity of estate
Mutual Privity▪ Original parties had mutual interest in
same land▪ Example = landlord-tenant▪ Modern law does not require mutual
privity
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Elements of Real Covenant
4. Privity of estate
Horizontal Privity▪ Land-based relationship between
original parties▪ Examples = landlord-tenant, buyer-
seller, grantor-grantee▪ Modern law = Often does not require
horizontal privity thus allowing neighbors to enter into real covenants.
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Elements of Real Covenant
4. Privity of estate
Vertical Privity▪ New owner of burdened or
benefited property must obtain property from prior person who was burdened or benefited.
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Gallagher v. Bell
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Neponsit v. Emigrant
1936 Photo of Neponsit
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Neponsit v. Emigrant
1924 Colorized Photo of Neponsit
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Neponsit v. Emigrant
Neponsit Today