Chapter 14 - § 14.1 • COVENANTS RUNNING WITH THE LAND

JurisdictionColorado
§ 14.1 • COVENANTS RUNNING WITH THE LAND

Unlike personal covenants, which operate like a general contract and bind only the actual parties to the covenant, real covenants "run with the land" and burden or benefit successors in interest.1

In order for a covenant to run with the land, not only must the parties to the covenant intend that it do so,2 but the covenant must "touch and concern" the land.3 That is, it must closely relate to the land, its use, or its enjoyment.4 The burden of a covenant runs with the land as well as its benefit.5 The mere recording of an instrument is not dispositive as to whether a covenant therein will run with the land.6 Whether a covenant will run with the land turns on the construction of the relevant documents.7 In determining whether a covenant runs with the land, it must be read as a whole.8

A condominium declaration is a covenant that attaches to and runs with the land.9 Restrictive covenants run with the land,10 as do covenants requiring payment of annual and special assessments to a homeowner's association.11 The Condominium Ownership Act specifically provides, "To the extent that any such declaration . . . provides for the payment of charges assessed by the association upon condominium units . . . the same shall be considered as covenants running with the land . . . ."12

A covenant to repair runs with the land.13 Damages due a surface owner by virtue of subsidence caused by the owner of the mineral estate are appurtenant to the land, and a covenant to make payments in lieu thereof likewise runs with the land.14 An easement for an irrigation ditch runs against the servient estate.15

A grantee's claim against his or her grantor for misrepresentation is personal, and does not pass to any subsequent purchaser.16 The right to compensation for the taking of land by condemnation is a personal right that belongs to the owner at the time of the taking

and does not pass by deed to a grantee.17 An agreement to subordinate a deed of trust to a subsequent deed of trust is personal, and does not run with the land.18 A claim for breach of the warranty of habitability does not pass to the grantee in a public trustee's deed.19 An agreement to pay an adjoining landowner the cost of a party wall does not run with the land where the adjoining landowner completed the wall after selling the adjoining land.20 Similarly, an agreement to pay a landowner a certain sum if he or she enters into a lease with a third party does not run with the land so as to preclude the original landowner from collecting the amount promised.21

A covenant running with the land in a subdivision may be modified or terminated when the covenant permits.22

A vested property right23 attaches to and runs with the property.24 It would appear that, with certain exceptions, transfer fee covenants created after May 23, 2011 do not run with the land.25


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Notes:

[1] Cloud v....

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