5.52 Other Covenants

• Library: Real Estate Practice Deskbook (2019 Ed.)

4. (§5.52) Other Covenants

All covenants in deeds and concerning realty or the use of realty are real or personal. But not all covenants are restrictive covenants. "Real" covenants "touch or concern" the land, and "run with the land." A real covenant binds all successors in interest, regardless of whether the successor had any actual or constructive notice of the covenant when the successor acquired title. Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309, 312 n.6 (Mo. App. E.D. 1981). "Personal" covenants are promises made by a grantor to a grantee generally concerning use of the land that do not technically "run with the land," but bind successors who purchase the land with actual or constructive notice of the covenant. Id. Properly recording covenants in a prior deed in the appropriate real estate records imparts constructive notice on, and binds, the grantee. Hall v. Am. Oil Co., 504 S.W.2d 313, 317 (Mo. App. E.D. 1973); Wolfner v. Miller, 711 S.W.2d 580, 583 (Mo. App. E.D. 1986).

A grantor's covenants of warranty of title, which are not essential to the validity of a deed, are not restrictive covenants. Often, special covenants on behalf of a grantor are, in lieu of affidavits, included in deeds to cure or explain away record title deficiencies.

A grantee to become personally liable for the payment and performance of the debt and all relevant documents must take subject to them (thereby qualifying the estate granted), and there must also be an assumption...