Covenant that Runs with the Land

Primary tabs

A property covenant is an agreement between two or more parties regarding certain use of a piece of real property. The covenant will either benefit or burden the landowner. A covenant that burdens the landowner is also called a restrictive covenant. There are two types of restrictive covenants: affirmative and negative. An affirmative covenant obligates a person to act. For example, a covenant that requires the homeowner to keep the trees trimmed in the yard is an affirmative covenant. A negative covenant prohibits a person to act. For example, a negative covenant can forbid a homeowner to build fences.

A covenant can run with the land, meaning the covenant will exist regardless the transference of the land. The subsequent landowner will continue being burdened or benefited by the covenant. Or a covenant can be a “personal covenant”. In this case, the covenant will only bind the original parties of the covenant, and will not pass to the subsequent parties.

To decide whether a covenant will run with the land, different jurisdictions look for different elements. The most common four elements are: the intent of the parties when they establish the covenant, whether the subsequent landowner has notice, whether the covenant has touches and concerns, and the horizonal and vertical privities between the parties. The same jurisdiction can also look for different elements when the covenant burdens or benefit the landowner.

For example, in California, the court looks for all four elements if the covenant at issue burdens the landowner, and the court only looks for intent, touches and concerns and privity if the covenant at issue benefits the landowner.

In Tennessee, the court only looks for intent, touches and concerns and privity even when the covenant burdens the landowner.

[Last updated in May of 2020 by the Wex Definitions Team]