Real Covenants

Affirmative Covenant

A covenant under which an owner is required to do something, such as build within a stated period of time.

Exam Tip 13:Ask yourself a series of questions:

(i) Identify whether you are running the benefit or the burden; (ii) If it is the benefit, you need relaxed vertical privity and you don't care about horizontal privity; (iii) If it is the burden, you need horizontal privity and strict vertical privity

Real convenant

A promise concerning the use

Which of the following does NOT satisfy the "touch and concern" requirement? A A restriction on use of property B A covenant to pay money to a homeowners association C A racially restrictive covenant D A negative covenant

A racially restrictive covenant

What kind of notice is required to run a real covenant? Either ______________________________ notice or ______________________________ (i.e., record) notice; • ______________________________ notice may also suffice for an equitable servitude.

Actual, constructive

A real covenant is subject to the Statute of Frauds, so it must

Be in writing

The benefit or burden of the covenant must affect ______________________________ parties as owners of the land.

Both

To run the benefit of the covenant to the successor, the successor need only take an interest that is ______________________________ of the original party's estate. This is called relaxed vertical privity

Carved

The remedy for a breach of a real covenant is ______________________________

Damages

Negative covenant: A restriction on use will usually touch and concern because they restrict what you can do with your land. Watch out for promises that are unenforceable such as ______________________________ covenants, as these do not touch and concern

Discriminate

The benefit of the covenant is the ability to ______________________________ the covenant.

Enforce

• To run the burden of the covenant to the successor, the successor must take the original party's ______________________________ interest. This is called strict vertical privity.

Entire

Horizontal privity refers to privity of ______________________________, where the estate and covenant are contained in the same instrument (e.g., the deed).

Estate

Which of the following statements regarding the running of benefits and burdens with the land is FALSE? A For the benefit to run with the land, both horizontal and vertical privity are required. B For the benefit to run with the land, "relaxed" vertical privity is required. C For the burden to run with the land, both horizontal and vertical privity are required. D For the burden to run with the land, both horizontal and vertical privity are required and the vertical privity must be strict vertical privity.

For the benefit to run with the land, both horizontal and vertical privity are required.

Which of the following statements regarding privity is FALSE? A In order for the burden to run, the original parties must have been in horizontal privity. B In order for the benefit to run, the original parties must have been in horizontal privity. C For the successor to property to be burdened by the covenant, the successor must take the original party's entire interest. D The relationship between an original party to a conveyance agreement and his successor to the property is one of strict vertical privity if the successor takes the original party's entire interest.

In order for the benefit to run, the original parties must have been in horizontal privity.

Which of the following statements regarding the requirements for running a real covenant is TRUE? A Constructive notice will not suffice as sufficient notice. B Actual notice of the covenant is required before a real covenant will run with the land. C Notice is only one of the four requirements for a covenant to run with the land. D In order to run with the land, the benefit or burden of the covenant must affect both the promisee and promisor as landowners.

In order to run with the land, the benefit or burden of the covenant must affect both the promisee and promisor as landowners.

To bind a successor, the original parties must

Intend for the covenant to run with the land

To run the burden to a successor, the ______________________________ parties to the promise must have been in horizontal privity

Original

Horizontal Privity

Refers to the nexus between the original parties A & B. It requires that they be in succession of estate, meaning that they were in a: 1) grantor-grantee; 2) landlord-tenant; or 3) mortgagor-mortgagee relationship. Horizontal privity is hard to establish and is usually absent/the reason the burden won't run.

When an agreement binds a successor, it

Runs with the land

The burden of the covenant is being ______________________________ to it (i.e., bound by it). Exa

Subject

Vertical privity refers to the relationship between the original party to the agreement and his/her ______________________________ to the property.

Successor

Regarding vertical privity, which of the following will run when the successor takes less than the original party's entire interest in the property? A The burden B The benefit C Both the burden and the benefit D Neither the burden nor the benefit

The Benefit

Vertical Privity

Vertical privity refers to the nexus between A and A-1. It simply requires some non-hostile nexus, such as contract, devise, or descent. This is much easier to establish, and will be absent only if A-1 acquired through adverse possession.

Which of the following statements regarding a real covenant is FALSE? A A covenant must be in writing. B A covenant is subject to state recording statutes. C To be bound by the covenant, a successor party must intend that the benefit or burden run with the land. D To bind a successor to the promise, the original parties must intend that the covenant run with the land.

To be bound by the covenant, a successor party must intend that the benefit or burden run with the land.

A real covenant must

Touch and concern the land in order to run

Requirements to Run Five elements: ______________________________; ______________________________; Touch and concern; ______________________________; ______________________________.

Witting Intent Notice Privity