- Plaintiff (assignee of Neponsit Property Owners’) has brought this action to foreclose a lien upon land which defendant owns – the lien, P alleges arises from a covenant arising from P selling the land to a predecessor in title of Defendant.
- P, in January, 1911, owned a tract of land in Queens, and P developed the tract of land for strictly residential purposes – in 1917 – P conveyed the land to Robert Deyer which contained the covenant in dispute – evidence shows that the each successive owner had the covenant attached to the deed therein.
- Covenant – affirmative covenant to pay money for use in connection with, but not upon, the land which it is said to the burden of the covenant.
- Covenant in this case is intended to create a charge or obligation to pay a fixed sum of money devoted to maintenance of the roads, paths…etc…common pieces of land.
Does such a covenant, which is affirmative to pay money for use in connection with, but not upon the land, “touch” or “Concern” the land?
The distinction of covenants that run with the land and with covenants that are personal, must depend upon the effect of the covenant on the legal rights which otherwise flow from ownership of land which are connected with the land: the covenant in purpose and effect must substantially alter these rights.
Regardless of the intentions of the parties, a covenant will run with the land and enforceable against subsequent parties only if the covenant complies with certain legal requirements:
- Must appear that grantor intended the covenant to run with the land
- The covenant must be one touching or concerning the land in which it runs.
- Need privity of estate between the parties claiming the promissee (person the covenant benefits.) and the promisor (person the covenant burden’s).
Old Approach/narrow English rule
- Only covenants which compel the owner of the land to submit to some restriction on the use of some property is considered to touch or concern the land.
- Upon buying the land, the defendant has enjoyed the benefits of the common and
- Courts look at substance over form in this case.
- In substance if not in form the covenant is a restrictive covenant which touches and concerns the defendant’s land and in substance, if not in form, there is privity of estate between the plaintiff and defendant.