A real covenant is a promise or obligation by a landholder that limits their use of the property, either requiring a specific act to be or not to be performed. If the covenant demands action, it is an affirmative covenant; if the covenant prohibits action, it is a negative covenant. Some examples include a covenant that requires the homeowner to keep trees trimmed (affirmative) or forbids a homeowner from building a fence (negative). Homeowners’ associations are some of the most common covenant enforcers, and may choose to restrict the height and size of buildings, materials used in construction, paint color, and even holiday decorations/certain flags. A covenant must exist in writing, either as a specific instrument or in a deed.
Real covenants affect the landowner’s property rights and “run with the land,” meaning that future owners of the property are bound by the covenant. Real covenants have two components: A burden and a benefit. A covenant will burden one owner (e.g., he must trim the trees or not build a fence) while the other benefits (e.g., increased curbside appeal and visibility within the neighborhood). A real covenant can be acquired back from the holder of its benefit by grant, purchase, or prescription.
Covenants differ from easements in that an easement is a right to use another’s land without acquiring any ownership of said land. In contrast, a covenant includes an interest in the land. Covenants also differ from equitable servitude. Equitable servitude is dependent on circumstances and therefore is not created through a written agreement. Instead, equitable servitude is implied by the courts.
[Last updated in August of 2023 by the Wex Definitions Team]
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