property question - covenants and privity of estate

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shmoo597
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property question - covenants and privity of estate

Postby shmoo597 » Sat May 08, 2010 2:21 am

ok - property question:

The majority view is that burdens need horizontal privity of estate to run with the land. In most jurisdictions, this means that the covenant must have been in the conveyance/deed between the original owner and whomever he sells too.

So, given that, is this correct?:

A sells land to B, with a covenant saying that B cannot build a factory on the land. This is a burden on B, and it runs with the land (meaning it stays with the land and will affect B's heirs/whoever B sells too) and there is privity of contract, so it is valid.

But benefits do not need privity of estate.

What would a benefit even be? I am having a hard time thinking of one - what is a good example, and how is a covenant that is a benefit different from an easement? And how is a benefit covenant made if not during the conveyance? Is it just essentially a promise/contract made after the land conveyance?

Thanks - and cannot wait to be done with property. Learning about conveyances and privity of contract is always how I envisioned spending my friday nights at 22....

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Learning Hand
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Re: property question - covenants and privity of estate

Postby Learning Hand » Sat May 08, 2010 2:25 am

The benefit is the promisee's right to enforce the promise; that is, to prevent B from building a factory on the land.

shmoo597
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Re: property question - covenants and privity of estate

Postby shmoo597 » Sat May 08, 2010 2:32 am

Learning Hand wrote:The benefit is the promisee's right to enforce the promise; that is, to prevent B from building a factory on the land.


How could a benefit ever arise then that was not part of the initial conveyance?

What I am really asking is what is the significance of the requirement that a burden covenant have privity of estate, and that a benefit covenant does not?

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Learning Hand
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Re: property question - covenants and privity of estate

Postby Learning Hand » Sat May 08, 2010 3:23 am

I'm not sure what you're asking. So, I'll just try to answer at least one of your original questions.

Affirmative Covenants and Easements
1) Affirmative covenant. It's a promise to perform some act on either's land.
2) An affirmative easement. Entitles dominant tenant to perform some act on servient land, rather than compelling servient tenant to perform an act.

Negative Covenants and Easements.
1) Negative covenants are not always clearly distinguishable from negative easements, because both limit the burdened owner's use of her land.
2) Because easements can be created only for a limited number of purposes (right of way easements, solar easements, easement to maintain a view, and wind easements) a court may characterize interest as covenant if it cannot be an easement. You must look at the intent behind the promise/covenant. If it is for a purpose that reflects an easement, it may be an easement.

Renzo
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Re: property question - covenants and privity of estate

Postby Renzo » Sun May 09, 2010 7:50 pm

Learning Hand wrote:I'm not sure what you're asking. So, I'll just try to answer at least one of your original questions.

Seems like you would have to know what's being asked to do that...


OP: The requirements for the burden to run are more restrictive than for the benefits of the same covenant to run. Say A has a right-of-way easement across B's property to access A's land. A sells to C, and B sells to D. There must be (at least at traditional common law) perfect vertical between B and D, or the burden of the covenant doesn't run. But C doesn't need perfect privity of estate to enforce the covenant, since the benefit runs with less restrictions.

In the case of your example, assuming that such a negative easement is allowed (a covenant not to build a factory would be void at traditional common law), A must pass the entire estate in perfect vertical privity to B, or else the burden doesn't run. Assuming the covenant come from an agreement between A and C, C has the benefit of the covenant, in that not having the factory on A's land "benefits" C. A can sell his land, and assuming the covenant is valid an appurtanant, there can be less than perfect privity between A and the buyer (D), and D will still be allowed to enforce it.




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