Covenant

• Author: Jeffrey Lehman, Shirelle Phelps

Page 254

An agreement, contract, or written promise between two individuals that frequently constitutes a pledge to do or refrain from doing something.

The individual making the promise or agreement is known as the covenantor, and the individual to whom such promise is made is called the covenantee.

Covenants are really a type of contractual arrangement that, if validly reached, is enforceable by a court. They can be phrased so as to prohibit certain actions and in such cases are sometimes called negative covenants.

There are two major categories of covenants in the law governing real property transactions: covenants running with the land and covenants for title.

Covenants Running with the Land

A covenant is said to run with the land in the event that the covenant is annexed to the estate and cannot be separated from the land or the land transferred without it. Such a covenant exists if the original owner as well as each successive owner of the property is either subject to its burden or entitled to its benefit. A covenant running with the land is said to touch and concern the property. For example, an individual might own property subject to the restriction that it is only to be used for church purposes. When selling the land, the person can only do so upon an agreement by the buyer that he or she, too, will only use the land for church purposes. The land is thereby burdened or encumbered by a RESTRICTIVE COVENANT, since the covenant specifically limits the use to which the land can be put. In addition, the covenant runs with the land because it remains attached to it despite subsequent changes in its ownership. This type of covenant is also called a covenant appurtenant.

Certain EASEMENTS also run with the land. An easement, for example, that permits one landowner to walk across a particular portion of the property of an adjoining landowner in order to gain access to the street would run with the land. Subsequent owners of both plots would take the land subject to such easement.

A covenant in gross is unlike a covenant running with the land in that it is personal, binding only the particular owner and not the land itself. A subsequent owner is not required to keep the promise as one would with a covenant appurtenant.

Covenants for Title

When an individual obtains title to, or possession and ownership of, real...