Expressed recital run with the land
Regardless of the express recital in a deed that a covenant will
run with the land, a promise to do an affirmative act contained
in a deed is generally NOT binding
upon subsequent grantees
of the promisor UNLESS certain
long-established legal requisites
For Affirmative Covenants to Run With the Land (Neponsit case)
The original grantee and grantor must have
intended that the
covenant run with the land.
There must exist "privity of estate"
between the party claiming the benefit
of the covenant and the right to
enforce it and the party
upon whom the burden of the covenant is to be imposed.
The covenant must be deemed to "touch
and concern" the land with which it runs
Touch and Concern Analysis (Run with the land v. Personal)
Depends upon the effect of the covenant on the legal rights
which otherwise would flow from the ownership of the land and
which are connected with the land.
Whether the covenant in purpose and effect substantially alters
Neponsit (Annual charge for Maintenance Did affect promisors
The covenants in issue in Neponsit required the owners of
property in a development to pay an
annual charge for the
maintenance of roads, paths,
parks, beaches, sewers and other public improvements.
The court concluded that the covenant
substantially affected the promisor's
legal interest in his property since the latter
received an easement in common and
a right of enjoyment in the
public improvements for which contribution was
received by all the landowners
in the subdivision.
In this case (covenant does NOT
substantially affect the ownership interest)
The covenant does NOT substantially affect the ownership
interest of the landowners in Orchard Hill subdivision.
No claim has been advance by Eagle that the subdivision would be
waterless without it water supplies.
The converse conclusion is that the Grosss obtained their own
Property owners will NOT be deprived of water if service is
The stipulation of facts does not demonstrate that other
property owners in the subdivision would be deprived of water
from appellant or that the price of water would become
prohibitive for other property owners if the Grosss terminated
Eagles water service.
Does not significantly relate to the ownership rights
The seasonal supply of water does not seem to relate in any
significant degree to the ownership rights of Grosss and the
other property ownership the subdivision.
Neponsit Easement to utilize public areas in the subdivision.
The interest was in the nature of a property right attached to
their respective properties.
In this case (the obligation
resembles a personal, contractual promise)
The obligation to receive water from appellant resembles a
personal, contractual promise to purchase water rather than a
significant interest attaching to respondent's property.
Circumstances of Case Whether a covenant runs with the land
It should be emphasized that the question whether a covenant is
so closely related to the use of the land that it should be
deemed to "run" with the land is one of degree, dependent on the
particular circumstances of a case ( Neponsit, supra, p 258).
Insufficient record to establish that the covenant runs with the
Here, the meager record before us is lacking and woefully
insufficient to establish that the covenant "touches and
concerns" the land, as we have interpreted that requirement.
- Undue restriction on alienation or
an onerous burden in perpetuity
The affirmative covenant is
disfavored in the law because of the fear that this
type of obligation imposes an "undue
restriction on alienation or an onerous burden in perpetuity.
Allowable Perpetuity Examples
In Nicholson, the covenant was condition upon the
continued existence of the builds on both the promisors and
In Neponsit, the original 1917 deed expressly
provided for it own lapse in 1940.
In this case,
no outside limitation has been placed on the obligation to
purchase water from the appellant.
This would bind ALL future owners, regardless of the use to
which the land is put.