Real Covenant Law and Legal Definition
A formal agreement or promise that passes with land from owner to owner so that the land cannot be conveyed to a new owner without the covenant. It is also called covenant that runs with the land.
Real covenants are classified as either affirmative, a promise to do something (e.g. build a fence) or negative, a promise to not do something (e.g. not use the land for commercial activity).
Real covenants run with the land at law which means that subsequent owners may be able to enforce them or be burdened by them.
American courts, have recognized that real covenants can be used to enhance the land.
Five elements must be proven for a Real Covenant Burden to run with the land:
1) There must be a writing;
2) There must be the intent for the burden to run to successors;
3) There must be notice to the successors;
4) The benefit and burden of the real covenant must touch and concern the land or meet a reasonableness test (minority rule);
5) There must be privity.
Four elements are required for a Real Covenant Benefit to run:
1) There must be a writing;
2) There must be the intent for the covenant to run with the benefited estate;
3) There must be privity;
4) The restrictions must touch and concern the benefited parcel OR they must meet a reasonableness test (minority rule.)
