COVENANT
An agreement, contract, or written promise between two individuals that frequently constitutes a pledge to do or refrain from doing something.
The individual making the promise or agreement is known as the covenantor, and the individual to whom such promise is made is called the covenantee.
Covenants are really a type of contractual arrangement that, if validly reached, is enforceable by a court. They can be phrased so as to prohibit certain actions and in such cases are sometimes called negative covenants.
There are two major categories of covenants in the law governing real property transactions: covenants running with the land and covenants for title.
Covenants Running with the Land
A covenant is said to run with the land in the
event that the covenant is annexed to the estate
and cannot be separated from the land or the
land transferred without it. Such a covenant
exists if the original owner as well as each suc-
cessive owner of the property is either subject to
its burden or entitled to its benefit. A covenant
running with the land is said to touch and con-
cern the property. For example, an individual
might own property subject to the restriction
that it is only to be used for church purposes.
When selling the land, the person can only do so
upon an agreement by the buyer that he or she,
too, will only use the land for church purposes.
The land is thereby burdened or encumbered by
a RESTRICTIVE COVENANT, since the covenant
specifically limits the use to which the land can
be put. In addition, the covenant runs with the
land because it remains attached to it despite
subsequent changes in its ownership. This type
of covenant is also called a covenant appur-
tenant.
Certain EASEMENTS also run with the land.
An easement, for example, that permits one
landowner to walk across a particular portion
of the property of an adjoining landowner in
order to gain access to the street would run
with the land. Subsequent owners of both
plots would take the land subject to such ease-
ment.
A covenant in gross is unlike a covenant run-
ning with the land in that it is personal, binding
only the particular owner and not the land itself.
A subsequent owner is not required to keep the
promise as one would with a covenant appur-
tenant.
Covenants for Title
When an individual obtains title to, or pos-
session and ownership of, real property, six
covenants are ordinarily afforded to him or her.
They are (1) covenant for seisin; (2) covenant of
the right to convey; (3) covenant against encum-
brances; (4) covenant for QUIET ENJOYMENT;
(5) covenant of general WARRANTY;and
(6) covenant for further assurances.
A deed to real property that provides for
usual covenants generally includes the first five
of these covenants. When a deed provides for
full covenants, it is regarded as giving such pro-
tection as is extended pursuant to all six
covenants.
Covenants for seisin and of the right to con-
vey are ordinarily regarded as being the same
thing. Essentially, they make a guarantee to the
grantee that the grantor is actually the owner of
the estate that he or she is transferring.
The covenant against encumbrances prom-
ises to the grantee that the property being con-
veyed is not subject to any outstanding rights or
interests by other parties, such as mortgages,
liens, easements, profits, or restrictions on its
use that would diminish its value. The existence
of ZONING restrictions do not constitute breach
of this covenant; however, the existence of a vio-
lation of some type of zoning or building
restriction might be regarded as a breach
thereof.
The covenants of quiet enjoyment and gen-
eral warranty both have the legal effect of pro-
tecting the grantee against all unlawful claims of
others, including the grantor and third parties,
who might attempt to effect an actual or con-
structive eviction of the grantee.
The sixth covenant, which is the covenant
for further assurances, is not widely used in
the United States. It is an agreement by the
grantor to perform any further necessary acts
within his or her ability to perfect the grantee’s
title.
The first three covenants of title ordinarily
do not run with the land, since they become per-
sonal choses in action—rights to initiate a law-
suit—if breached upon delivery of the deed. The
others are covenants appurtenant or run with
the land and are enforceable by all grantees of
the land.
In order to recover on the basis of a breach of a covenant of title, financial loss must actually be sustained by the covenantee, since such covenants are contracts of indemnity. In most jurisdictions, the maximum amount of damages recoverable for such a breach is the purchase price of the land plus interest.
Purposes
Land use planning is often effected through
the use of covenants. Covenants facilitate the
creation of particular types of neighborhoods
as part of a neighborhood plan. A housing developer
might, for example, buy up vacant land to
divide into building lots. A low price is paid for
the undeveloped land, which the developer
subsequently sells burdened with a number of
restrictive covenants. The developer might stipulate
in the contract of sale that the owner must
retain the original size of a lot. Developers can
also make owners agree that houses to be constructed
upon the lots must be larger than a
certain size and include other specifications to
ensure that such property will more than likely
sell for premium prices because of the desirability
of the neighborhood. Courts enforce
such covenants provided they benefit and burden
all the property owners in a neighborhood
equally.
Covenants will not, however, be enforced if
they are intended to accomplish an illegal purpose.
The Supreme Court ruled in Shelley v.
Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161
(1948), that no court or state officials have the
power under law to take any action toward the
enforcement of a racial covenant. In this case, a
group of neighbors were bringing suit to prohibit
a property owner from selling his home to
blacks, based on the argument that the owner
had purchased the home subject to the restrictive
covenant not to sell to blacks. The covenant
was found to be unenforceable based on equal
housing laws. To enforce it would constitute a
CIVIL RIGHTS violation.
FURTHER READINGS
Bell, Cedric D. 2000. The Law of Real Property. London: Old
Bailey.
Brinig, Margaret F., and Steven Nock. 1999. “Covenant and
Contract.” Regent University Law Review 12 (spring):
9–26.
Kraut, Jayson, et al. 1983. American Jurisprudence. Rochester,
N.Y.: Lawyers Cooperative.
CROSS-REFERENCES
Chose in Action; Easement; Encumbrance; Estate.
