Satisfying the Horizontal Privity Requirement
Whereas vertical privity, in property law, refers to the relationship between an original party and a successor, horizontal privity refers only to the relationship between the original parties who created the covenant. Horizontal privity today means that the original parties created the covenant in one of two situations:
In the transfer of benefited or burdened land: If the parties create the covenant in a deed or other instrument that transfers the benefited or burdened land from one party to the other, they have horizontal privity.
Relating to land in which both parties have an interest: Regardless of when they acquired their interests, the original parties have horizontal privity if they create a covenant that relates to interests that they both have in the same land. Most commonly, that means that the covenant relates to a landlord-tenant relationship or an easement that one of the original parties has on the other original party’s land.
Some states no longer require horizontal privity, and that may be a trend. But often the issue doesn’t come up because you don’t have to prove horizontal privity in order to enforce a covenant in equity, only at law.
Horizontal privity is the only one of the requirements for running covenants that can’t be satisfied separately for the benefit and burden. All the other requirements for running covenants may be met for one side of the relationship but not the other.
But with horizontal privity, the original parties either had horizontal privity—and therefore the requirement is satisfied whether you’re considering the running of the benefit, the burden, or both—or they didn’t, in which case the requirement isn’t satisfied for either the benefit or the burden to run.
However, some courts say that horizontal privity is required only for the burden to run—only if someone is seeking to enforce a covenant against a successor to the original burdened party—and isn’t required in order for the benefit to run. In that case, if you’re considering the running of the benefit, you don’t have to consider horizontal privity at all.
A successor must prove horizontal privity in order to enforce a covenant against a successor, but that doesn’t mean she has to prove that she has horizontal privity with anyone. By definition, a successor never has horizontal privity because horizontal privity is a relationship between the original parties. A successor just has to prove that the original parties had horizontal privity.