Restrictive Covenants

Question 1

When does a covenant run with the land and be enforceable against subsequent grantees?

Answer 1

A covenant runs with the land and is enforceable against subsequent grantees if (i) the original parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) and the covenant touches and concerns the leased land, i.e., burdens one party and benefits the other party with respect to their interests in the property; and (iv) the burdened party has notice of the covenant.

Question 2

Zoning regulations and restrictive covenants

Answer 2

Zoning regulations and restrictive covenants in private deeds are completely separate concepts. Both must be complied with, and neither provides any excuse for violating the other.

Question 3

Implied equitable servitudes

Answer 3

When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative equitable servitudes binding all the parcels in the subdivision may be implied if: (i) there exists a common scheme for development, and (ii) the grantee has notice of the covenant. The requisite notice may be acquired through actual notice (direct knowledge of the prior deeds’ covenants), inquiry notice (the neighborhood appears to conform to common restrictions), or record notice (if the prior deeds are in the grantee’s chain of title he will, under the recording acts, have constructive notice of their contents).

Question 4

Enforcement of equitable servitudes

Answer 4

For successors of the original promisee and promisor to enforce an equitable servitude, both the benefit and the burden of the servitude must run with the land. For the burden to run and thus bind the successor of the promisor:

1. the covenanting parties must have intended that the servitude be enforceable by and against assignees:
2. the covenant must touch and concern the land; and
3. the party to be bound must have had actual, constructive (record), or inquiry notice.