Property owners can customize their rights and reconcile them with other owners by private agreement. One way to do that is by using covenants. In general, a covenant is just a contractual promise from one person to another person. A covenant may relate to the land by promising to do something on land or by promising not to do something on land. Covenants thus may be described as follows:
Negative: A negative covenant, or restrictive covenant, is a covenant that the property owner will not do or allow certain things on her land. For example, a covenant not to use a property for commercial purposes is a restrictive covenant. Most covenants are restrictive.
Affirmative: An affirmative covenant is a promise to do something. It may be a promise to do something on the benefited land, such as providing heat to a building on the covenantee’s land. Or it may be a promise to do something on the covenantor’s burdened land, such as maintaining certain types of landscaping features on her land.
An affirmative covenant may even be a promise to pay money, like a covenant to pay dues to a homeowners’ association.
When covenants relate to land, they create a legal interest in land and therefore must comply with the statute of frauds. The statute of frauds requires written evidence of an interest in real property, signed by the party that’s denying the creation of the interest.
Most covenants are created in instruments granting other interests, such as deeds or leases, and so satisfy the statute of frauds. Even if a covenant isn’t in writing, estoppel may allow it to be enforced. Estoppel means that if a party reasonably expends significant value in reliance on a covenant, she may enforce the covenant even if it isn’t written.
For example, if the benefited party builds a house, relying on a neighbor’s covenant not to build a tall building next door, the neighbor may be estopped from denying the existence of the covenant.
If the covenant satisfies the statute of frauds, the original parties to the covenant can enforce the agreement against each other just like they could enforce any other contract. The covenant doesn’t have to meet any special property law requirements for the original parties to enforce it.
But the covenant does have to meet special requirements in order to be enforced by and against subsequent owners of the original parties’ lands.