smokyroom26 wrote:So I'm grappling with this concept and I'm having a bit of trouble teasing it out.
To enforce a real covenant, I thought that only vertical privity was required - meaning the person trying to enforce the covenant had to be a successor in interest to the original covenanting parties. Is horizontal privity required as well? I thought that only referred to the original covenanting relationship, and when considering the enforceability of a covenant later you only needed to worry about whether there was vertical privity.
Also, how does this concept connect to Tulk v. Moxhay? I know that case was supposed to have created the equitable servitude, but part of its reasoning focuses on how the original agreement between the parties didn't run with the land (and that's why it needs enforcement in equity). I am not sure why that agreement didn't run with the land, unless I've got the facts wrong, since the original agreement bound covenantor, his heirs and assigns.
Too lazy to give you a direct answer, but these are the relevant sections from my outline from last year (I omitted most of my stuff on Equitable servitudes because it doesn't seem relevant to what you're asking):
5. Real Covenants
a. Real Covenant – contractual land use restrictions intended to run with the land (estate) at law (enforced through damages)
i. Reasoning
1. People believe that their property will be worth more if they get the adjacent owner to make an agreement about how to use the land
2. Why not a contract? Contract is only binding on the parties who are privy to the contract
ii. Must be in writing – cannot be implied and cannot be by prescription
iii. Must be privity of estate
iv. Must touch and concern the land
b. Types of Real Covenants
i. Affirmative – obligates owners to perform certain acts
1. Contrast with affirmative easement – in affirmative easement, the dominant tenement has the right to do something; in an affirmative covenant, the servient tenement is obligated to do something
ii. Negative – owners promise to refrain from certain acts
c. Notice
i. Not enforceable against a bona fide purchaser without notice
ii. Enforceable against donees, devisees, and heirs with or without notice
d. Privity of Estate
i. Horizontal privity – privity between the original owners
1. Accomplished through conveyance of interests
a. “Horizontal privity is satisfied when the transaction of which the promise is a part includes a transfer of an interest either in the land benefitted by or in the land burdened by the performance of the promise” Sonoma Development v. Miller
2. Typically accomplished through conveying the deeds to a strawman who conveys them back with the covenant
3. At English common law – had to be a landlord-tenant relationship
ii. Vertical privity – accomplished through conveyance of estate to subsequent owners
e. Running of the benefit
i. Must be intent on the part of the contractors for the benefit to run
ii. No notice requirement
iii. Must touch & concern the land
iv. No horizontal privity requirements
v. Must have vertical privity (must have the same or lesser estate)
f. Running of the burden
i. Must be intent on the part of the contractors for the burden to run
ii. Must have notice (if subsequent bona fide purchaser – no requirement for devisee / donee)
iii. Must touch & concern the land
iv. Majority requires horizontal privity
v. Must have vertical privity (same estate)
g. Adverse possessors – they are not in vertical privity, so the covenant does not run (obtain a new title through action of law)
6. Equitable Servitude
a. Equitable Servitude – a covenant (interest in land, not in an estate), enforced in equity
i. Requirements
1. Parties must intend for it to run with the land
2. Subsequent bona fide purchaser must have notice
3. Must touch and concern the land
4. Horizontal and vertical privity are not required (except for 3d party beneficiaries)
a. Virginia requires horizontal privity for injunction on equitable servitudes arising outside of a general plan
5. Can be implied from a common plan
b. Can provide both negative and affirmative covenants (negative only in England)
c. Origins
i. Tulk v. Moxhay – T conveyed to E in fee Leicester square with a covenant that E would maintain the garden, not cover with building, and surrounding tenants can use square if they pay rent. E conveyed the square to M. Issue arose about whether the burden would run
1. In England, horizontal privity was only satisfied in landlord-tenant relationship
2. In equity, the court balanced the equities
a. Unfair that the purchaser was not burdened by the covenant when it was incorporated into the sales price
b. Enforced through injunction rather than damages
3. Developed the equitable servitude