musicfor18 wrote:Franzese didn't address this in her lecture, but it's correct. For the burden of a real covenant to run, there's only vertical privity if the entire balance of the interest is transferred. For the benefit to run, there's vertical privity if any amount of the interest is transferred. I don't know how this intersects with the question about covenants in leases.
Okay I'll make up an example to illustrate my question a little better.
"A" conveys property to "B." In the deed, A includes a covenant that B shall not BBQ on his property because the smoke bothers A.
B sublets his property to "C." B doesn't say anything to C about the restriction on BBQing. C decides to host a BBQ. A wants to prevent C from doing this. What does A do?
First, I don't think B would be "subletting" here because, under your facts, B isn't a tenant. He owns the land in fee simple. So, this is a regular real covenant/equitable servitude question. I'll answer the rest of your question as if B is leasing to C. This can't be enforced against C as a real covenant (so, no damages against C). This is because there's no vertical privity for the burden, so the burden doesn't run to C (because B didn't transfer the entire remaining durational interest in the property to C). But I think A could still enforce this as real covenant against B, and get damages from B.
Or, if A just wants an injunction, then you see whether it meets the requirements for an equitable servitude. For the burden to be enforceable as an ES, the covenant must be in writing, it must be intended to run against successors; it must touch and concern the land; and the successor must have notice (actual, inquiry, or record). For the benefit to run, you need a writing, intent, and touch and concern. There's a writing here (the deed), courts usually presume intent to run, it definitely touches and concerns the land. The only question is whether C had notice of the covenant. I'm not 100% positive is lessees are held to have record notice of covenants in deeds in the chain of title. Does anyone know? If so, then C has record notice.