Determining Intent for a Covenant to Run with the Land
In property law, a covenant can run with the land only if the original parties who create the covenant intend for it to run with that land. If they don’t intend the benefit or the burden to run with the land, then the covenant is just a personal covenant between those parties and it doesn’t bind or benefit successive owners, regardless of whether the other requirements are met.
If they intend the burden to run with the burdened land but don’t intend the benefit to run with the benefited land, then only the burden can run, and vice versa.
A successor may prove the original parties’ intent in various ways:
Direct statements: Sometimes covenants expressly say that the covenant will run with the land to burden successors to the covenantor, benefit successors to the covenantee, or both. That obviously proves the original parties’ intent for the covenant to run.
Indirect statements: Even if the instrument creating the covenant doesn’t say it directly, it may still indicate that the parties intend for the covenant to run with the land. For example, a covenant may indicate intent to run by saying that the covenant will bind (or benefit) the party’s “successors and assigns.”
The parties may even indicate their intent for the burden to run by saying that the covenant will “permanently” restrict the land or using other words like that.
Negotiations: The circumstances of the transaction and the parties’ reasons for entering into a covenant can demonstrate intent. For example, if a seller tells a buyer she wants to include a covenant that restricts the subject land to residential purposes for the benefit of future owners who may develop the seller’s retained property, that indicates that the parties intended the benefit to run with the land.
The nature of the covenant: If the benefit of the covenant touches and concerns the land owned by the benefited party, courts generally presume that the parties intended the benefit to run with the benefited land. Likewise, if the burden of the covenant touches and concerns land owned by the burdened party, courts generally presume that the parties intended the burden to run.
No matter how clear and emphatic the original parties’ intent to bind or benefit successors, the covenant won’t run with the land if it doesn’t meet the other requirements for covenants to run. If the covenant isn’t in fact connected to the land, real property law won’t let the parties attach the covenant to the land even if they want to.
Intent for the benefit to run and intent for the burden to run are separate factual questions, and evidence of one doesn’t necessarily prove the other. For example, a covenant may say that the covenant will bind the grantee, her successors, and assigns.
That’s good evidence that the parties intended the burden to run with the grantee’s land, but it doesn’t say anything about whether the parties intended the benefit to run with the grantor’s land.