Many times restrictive covenants (deed restrictions), easement rights and other rights or burdens on real property are said to “run with the land,” or are otherwise characterized as “running with the land.” But, what does this phrase mean?
SIMPLE DEFINITION
Put simply, covenants, burdens and rights “run with the land,” when:
- they are tied to the property, irrespective of ownership; and
- they survive conveyances and transfers of the land from one owner to another.
The U.S. Legal online dictionary also provides a simplified and concise definition.
LEGAL DEFINITION
In Texas, a covenant runs with the land when it “touches and concerns” the land; relates to a thing in existence or specifically binds the parties and their assigns; is intended by the original parties to run with the land; and when the successor to the burden has notice. Westland Oil Devel Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 910-11 (Tex.1982); Williams, Restrictions on the Use of Land; Covenants Running with the Land at Law, 27 Tex.L. Rev. 419, 423 (1949).
In order for the covenant to run with the land there must be privity of estate between the parties to the agreement. This means there must be a mutual or successive relationship to the same rights of property. Blasser v. Cass, 158 Tex. 560, 314 S.W.2d 807 (1958).
PERSONAL COVENANTS OR PROMISES DO NOT RUN WITH LAND
By contrast, a covenant does NOT run with the land if it is “personal” or tied to any individual owner. Promises purely for the benefit of one having no interest in the land will not be enforced against successive owners of real property as a covenant running with the land.
The logic behind this distinction is the treatment of land by Texas Courtsas “an article of commerce” that “should be subject to ready sale and lease.” To burden lands with personal covenants would be to hamper and impede real estate transactions to the detriment of owners, purchasers and agents.
The following rationale of the rule is also given:
“The imposition, by virtue of his succession, of an obligation as a promisor upon the successor of one who has made a promise respecting the use of his land creates a burden upon the ownership of the land of the promisor which may have a disadvantageous effect upon its use and development. There is a social interest in the utilization of land. That social interest is adversely affected by burdens placed on the ownership of land. This is true whether the burden consists of a limitation on the use to which the land can be put or an obligation to pay for benefits received in its use. In the one case, a desirable use may be discouraged; in the other, prospective purchasers having the means to develop the land may be deterred from doing so by reluctance to incur the obligation. Unless a burden has some compensating advantage which prevents it from being on the whole a deterrent to land use and development, the running of the promise by which it was created is not permitted.” 5 Restatement of the Law of Property, p. 3219.
See also, Eddy v. Hinnant, 82 Tex. 354, 18 S.W. 562; Lakewood Heights v. McCuistion, Tex.Civ.App., 226 S.W. 1109, wr. ref.; Montgomery v. Creager, Tex.Civ. App., 22 S.W.2d 463, no writ history; Howard R. Williams, Restrictions on the Use of Land, 27 Tex.Law Review 419, 429.
PRACTICAL CONSIDERATIONS – WHAT TYPES OF ITEMS “RUN WITH LAND?”
There are two types of covenants generally considered to run with land: Affirmative and Restrictive. Affirmative covenants burden the owners of real property to perform a specific act (such as paying assessments or building a single family residence). Conversely, restrictive covenant prohibit property owners for committing certain acts (such as establishing a feed lot or parking junk cars on the lawn). Certain types of easements (appurtenant) also run with land.
