Deciding Whether a Covenant Touches and Concerns the Relevant Land
A covenant can run with land only if it touches and concerns that land. That’s true both for the benefit to run with benefited land and for the burden of the covenant to run with burdened land. Property law simply doesn’t allow parties to attach covenants to ownership of land unless the covenant is actually related to the land.
A covenant touches and concerns land if the performance of the covenant somehow relates to the use and enjoyment of the land.
Authorities sometimes say that the covenant touches and concerns burdened land if it lessens the covenantor’s legal rights in relation to the land and makes them less valuable, whereas the covenant touches and concerns benefited land if it increases the covenantee’s legal rights in relation to her land and makes them more valuable.
This standard can be confusing and circular, however. It’s probably best to think of “touching and concerning” generally as meaning that actually performing what the covenant requires has some effect, direct or indirect, on what happens on the land.
Touching and concerning burdened land
A covenant generally touches and concerns the burdened land if it dictates things that must or can’t be done on the burdened land. Here are some examples of how the burden of a covenant may relate to the use and enjoyment of the burdened land:
A negative covenant typically touches and concerns burdened land by restricting how the land may be used, such as by prohibiting certain activities or buildings on the land.
An affirmative covenant may touch and concern the burdened land by requiring the burdened party to do something on her land, such as maintaining underground drain tile that benefits the adjoining land by helping surface water drain away from it.
If the burdened party would have to own the burdened land in order to be able to perform the covenant, the covenant touches and concerns the burdened land. For a simple example, if the covenant is that certain kinds of buildings may not be built on a specified parcel of land, the covenantor would have to own the land in order to keep that promise.
On the other hand, except for covenants to pay money, if the person could perform the covenant even if she didn’t own the burdened land, then the covenant doesn’t touch and concern that land.
For example, a covenant to use a certain raw material only from the covenantee’s land in the course of the covenantor’s business doesn’t require the burdened party to conduct the business in any particular location and therefore doesn’t touch and concern the burdened party’s land.
Covenanting to pay money
Some affirmative covenants, such as covenants to maintain insurance, pay rent, pay real estate taxes, and pay homeowners’ association dues, require payment of money or other obligations rather than to do a thing on the land.
Although covenants to pay money don’t directly relate to the use of the land (after all, a covenantor could pay promised money even if she owned no land at all), such covenants do touch and concern the land if the payments are used in a way that affects the burdened land.
A tenant’s covenant to pay rent to the landlord is also a covenant to pay money. Unlike other types of covenants to pay money, the covenant to pay rent touches and concerns the land even though the landlord doesn’t have to use the money to maintain the premises or in any other way that affects the tenant’s burdened estate.
Courts seem to reason that the payment covenant is the consideration for the estate in the first place, so it affects the burdened estate by being the means of acquiring and keeping the estate.
Touching and concerning benefited land
A covenant may touch and concern burdened land without touching and concerning benefited land. So don’t talk about connections to the burdened land when you’re explaining why the covenant touches and concerns benefited land. They’re separate questions.
Often the benefit of a covenant less obviously touches and concerns benefited land than the burden touches and concerns burdened land. The performance of a real covenant typically touches and concerns the burdened land because it involves activity on the burdened land. On the other hand, the performance of a real covenant typically touches and concerns the benefited land by somehow making it more useful or enjoyable.
Restrictive covenants may prevent activities on the burdened land that would conflict with or impair the benefited party’s use of land. For example, a covenant not to use the burdened land for purposes other than single-family residential purposes makes the benefited party’s nearby land more enjoyable and valuable as a single-family residence by preventing uses that would bring more traffic and people.
Similarly, affirmative covenants may make the benefited party’s nearby land more enjoyable or useful by making the burdened land a safer, healthier, more attractive neighboring property. It also may touch and concern the benefited land more directly, as in a covenant to maintain drain tile on the burdened land to improve drainage of surface water off the benefited land.