Flashcards in REAL COVENANTS (promises relating to land) Deck (39):
(Gallagher v. Bell)
Are these promises real covenants?
Does the conveyance of the land that is subject to the real covenant DISCHARGE the original promisor?
When do you know that you have a real covenant?
The promise must RUN w/the land
What does run w/the land mean/require?
1) must Touch & Concern the land
2) be entered w/the INTENT that the promise will run w/the land
3) be entered and enforced by parties w/ the appropriated "Privity of esate"
If missing any of the 3 requirements of running w/the land then what do we have?
a personal contract, which means only orig. parties are bound.
what is a restrictive covenant?
another word for Real Covenant
how do we know if it "touches & concerns the land?" (powell & Bigelow's view)
1) if the covenanter's estate is rendered less valuable because of the promise, the BURDEN RUNS W/LAND
2) if the covenantee's estate is rendered more valuable because of the promise, the BENEFIT RUNS W/LAND
Touches & Concerning- Restatement View
requires that the promise be:
-of BENEFIT to the use or enjoyment of the land
(much broader view then P& B)
Covenantor/Promisors estate less valuable
lowered market value
ex) promise is person has to paint fend . NO one wants to buy land that having to paint is a requirement. :(
Covenantee's interest enhanced (P&B)
the party that got the fence, property value hasn't gone down
which view do most jurisdictions like
Why don't we like promises unless they "run w/land"
it's like feudal law all over again. NON-connected promises render land worthless. (w.out touch & concern requirement, people would go after too many promises)
(dowry, knighthood obligations)
run w/land = ___ __ ____
touch & concern
parties must have INTENDED the promise to run w/the land for it to be a real covenant
Intent is a question of _____?
most typically---will be clearly expressed in deed. "this covenant shall runw/land"
Privity, english rule?
the original parties had a continuing interest in the same land
interests w/ mutual privity
-Possessory Estates & assoc. future interests
-cotenants (any variety)
Privity, Minority American rule
the original parties were grantor and grantee on the deed that contained the promise
why does horizontal privity have to be a grantor/grantee relationship?
as the promise is created at the time the deed was created
3 factors to look at w/Horizontal Privity
1) a conveyance
2) simultaneous w/ creation of promise
3) Same deed
Privity, Majority American Rule
the enforcement parties are successors in interest to the original contracting parties --no specific relationship is needed between the original contracting parties
Are you a party that enters promise or did you acquire title form someone who did?
if you acquired title from someone who did then it's vertical privity
(successor in interest or assignee)
do we care about the relationship in vertical privity?
if you are in a minority state w/ horizontal privity what must you still look at ...?
Vertical Privity as well.
Is the privity requirement dying?
( Neponsit Property owners v. emigrant industrial Sav. Bank)
-some states recognize that her is an advantage to allowing a home owner's assoc. to enforce easements despite the fact the ASSOC OWNS NO LAND
(doesn't own anything so how can run w/land??)
Home owner's assoc being popular & beneficial resulted in two options:
1) abolish privity (cuz didn't owns anything)
2) great an exception===PRIVITY TO AN AGENT
Two land owners & agreement between each other, do we care?
no, a personal contract
when do we care when two land owners made an agreement?
When one owner is GONE & SELLS land
(only time look at it is when one party has CONVEYED their land)
When in hypo one party has conveyed their land what we look at:
-does it run w/land
-touch & concern
if the party enforcing covenant is NOT THE ORIGINAL PARTY
the BENEFIT of the covenant must have RUN w/the land
If the party AGAINST whom enforcement is sought is NOT the ORIGINAL contracting party.....
the BURDEN of the covenant must have run w/the land
Enforcer, not orig party
Enforced upon,not orig party
Effects of conveying a real covenant
-grantee is benefitted or burdened by the promise upon conveyance
-usually grantOR is discharged form the benefit or burden upon conveyance (some juris. won't let him if he was an orig promisor/ee)
Most jurisdictions if you convey property then____?
your conveyance discharges you form liability
Minority jurisdictions will keep the orig. party involved as guarantor under ____ __ ___.
privity of contract