Definition and Historical Background
This seal signified a solemn promise to engage in or refrain from a specified action, and the common law would enforce a covenant even in the absence of consideration due to its unusual solemnity (1). In the United States, an implied covenant of good faith is presumed in contract law. Covenants can be classified into affirmative or positive covenants, which require the covenantor to perform an action, and negative covenants, which require the covenantor to refrain from an action (2). In the realm of property law, real covenants are conditions tied to the ownership or use of land, and may impose duties or restrictions on the land’s use regardless of the owner (3). Over time, the enforcement of covenants has evolved, with controversies arising over selective enforcement and human rights considerations in leasehold reform (4).
- Wikipedia. Covenant (law). [online] Available at: https://en.wikipedia.org/wiki/Covenant_(law) [Accessed 20 Oct. 2021].
Types of Restrictive Covenants
Restrictive covenants can be classified into various types based on their purpose and application in property law. Real covenants, also known as covenants, conditions, and restrictions (CCRs), are tied to the ownership or use of land and can impose duties or restrictions on land use. These can be further divided into affirmative covenants, which require a specific action, and negative covenants, which prohibit certain actions. Covenants may also “run with the land” as covenant appurtenant, meaning they apply to any future landowners, or be personal covenants, known as covenant in gross, which apply only to a particular individual. In addition to real covenants, non-compete clauses in contract law are also considered restrictive covenants. It is essential for property owners and prospective buyers to be aware of any restrictive covenants associated with a property, as they can significantly impact the use and enjoyment of the land (Wikipedia, n.d.).
Real Covenants in Property Law
Real covenants in property law refer to legally binding agreements or promises that impose certain conditions or restrictions on the use of land. These covenants can be either affirmative, requiring the landowner to perform a specific action, or negative, prohibiting the landowner from engaging in certain activities on the property. A key characteristic of real covenants is that they often “run with the land,” meaning that the obligations and restrictions apply to all future owners of the property, regardless of changes in ownership. This is in contrast to personal covenants, which apply only to the original parties involved in the agreement. Real covenants are typically included in property deeds and must be disclosed to prospective purchasers. They may also be recorded in public records or shown in Torrens title systems in Commonwealth countries (Restatement (Third) of Property; Torrens title). Enforcement of real covenants can become lax over time, especially when the original promisee is no longer involved in the land (Symposium, 1986).
Covenants, Conditions, and Restrictions
Covenants, Conditions, and Restrictions (CCRs) are essential components of property law, primarily concerned with regulating the use and development of land. CCRs encompass a variety of agreements, including real covenants, which are conditions tied to the ownership or use of land, and deed restrictions, which impose limitations on how the land may be utilized. These agreements can either be negative, restricting certain actions, or affirmative, requiring specific actions to be taken. CCRs may “run with the land,” meaning that future landowners must adhere to the terms, or apply solely to a particular individual (known as a covenant in gross or of a purely personal nature) (Pealver & Krier, 2010). Disclosure and recording of CCRs are crucial, as they inform prospective purchasers of any restrictions and may be shown in the deed or recorded in the case of Commonwealth countries (Harpum, Megarry, & Wade, 2006). The enforcement of CCRs may become lax over time, leading to controversies and selective enforcement issues (French, 2011).
- French, D. (2011). Real Property Law. In English Private Law (3rd ed.). Oxford University Press.
- Harpum, C., Megarry, R., & Wade, W. (2006). The Law of Real Property (7th ed.). Sweet & Maxwell.
- Pealver, E. M., & Krier, J. E. (2010). Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership. Yale University Press.
Affirmative and Negative Covenants
Affirmative and negative covenants are essential components of property law, particularly in the context of real covenants. Affirmative covenants, also known as positive covenants in England and Wales, require the covenantor to perform a specific action, such as maintaining a shared driveway or paying homeowners’ association fees. On the other hand, negative covenants impose restrictions on the use of land, prohibiting certain activities or developments, like constructing a building above a certain height or using the property for commercial purposes (Restatement (Third) of Property, 2000).
These covenants can either “run with the land” as a covenant appurtenant, binding future owners to the terms, or apply solely to a particular person as a covenant in gross (English Law, 1986). While affirmative covenants typically do not run with the land under English law, the United States examines such covenants more closely, and with exceptions, has permitted them to run with the land (Symposium, 1986). Enforcement of these covenants may become lax over time, especially when the original promisee is no longer involved in the land (Homeowner Associations, 2011).
- Restatement (Third) of Property: Servitudes. (2000). American Law Institute.
- Symposium: The Future of the Law of Servitudes. (1986). Columbia Law Review, 86(6), 1187-1448.
- English Law: Covenants in Gross. (1986). Columbia Law Review, 86(6), 1375-1396.
- Homeowner Associations and Selective Enforcement. (2011). Community Associations Journal.
Running with the Land: Covenant Appurtenant
A covenant appurtenant is a type of real covenant in property law that imposes certain obligations or restrictions on the use of land. It is distinguished from a personal covenant, also known as a covenant in gross, which applies only to a specific individual and does not bind future owners of the property. The concept of “running with the land” refers to the idea that a covenant appurtenant is attached to the land itself, rather than to a particular person. As a result, when the land is transferred to a new owner, the covenant appurtenant continues to apply, ensuring that the obligations or restrictions remain in effect for subsequent owners. This enduring nature of covenant appurtenant is essential in maintaining the intended purpose of the covenant, such as preserving the character of a neighborhood or protecting the environment, regardless of changes in ownership over time (Restatement (Third) of Property, 1986; English Law Commission, 2011).
Personal Covenants: Covenant in Gross
Personal covenants are a type of restrictive covenant in property law that specifically apply to a particular individual, rather than being tied to the land itself. These covenants impose obligations or restrictions on the individual, regardless of their ownership or use of the land. In contrast, covenants that run with the land, such as real covenants or covenants appurtenant, bind successive owners of the land and are enforceable against them.
The concept of a covenant in gross is closely related to personal covenants, as it is also a covenant that applies to a specific person rather than the land. However, a covenant in gross is typically associated with an interest in land, such as an easement, which grants the holder certain rights to use another’s property. While personal covenants and covenants in gross both focus on the individual, the key distinction lies in the nature of the obligation or restriction imposed: personal covenants are primarily concerned with the individual’s actions, whereas covenants in gross involve the individual’s rights to use or access land owned by another party (Dukeminier, J., & Krier, J. E. (2017). Property. Wolters Kluwer Law & Business.).
Disclosure and Recording of Restrictive Covenants
The importance of disclosing and recording restrictive covenants in property transactions lies in ensuring transparency and protecting the interests of all parties involved. Disclosure of restrictive covenants allows prospective purchasers to make informed decisions about the property, as they become aware of any limitations or obligations tied to the land. This helps prevent potential disputes and misunderstandings in the future, as buyers are fully aware of the conditions they must adhere to upon acquiring the property (Peel and Treitel, 2011).
Recording restrictive covenants, on the other hand, serves as a formal documentation of these conditions, making them easily accessible and enforceable. In many jurisdictions, such as the Commonwealth countries, covenants are recorded in the Torrens title system, ensuring that they are binding on future owners of the land (Bradbrook et al., 2007). This process of recording covenants also contributes to the stability and predictability of property law, as it establishes a clear and organized system for tracking and enforcing land use restrictions. Overall, the disclosure and recording of restrictive covenants play a crucial role in maintaining transparency, protecting property rights, and upholding the integrity of property law.
- Bradbrook, A.J., MacCallum, S.V., and Moore, A.P. (2007). Australian Real Property Law. Sydney: Thomson Reuters.
- Peel, E., and Treitel, G.H. (2011). Treitel on the Law of Contract. London: Sweet & Maxwell.
Enforcement and Laxity Issues
Enforcement and laxity issues in restrictive covenants in property law arise due to various factors. Over time, as the original promisee of the covenant is no longer involved in the land, enforcement may become lax, leading to potential disputes among property owners and other stakeholders (Symposium, 1986). Additionally, selective enforcement of covenants by homeowner associations has been a subject of controversy, as it may result in unfair treatment of certain property owners (Wikipedia, n.d.).
Another challenge in enforcing restrictive covenants is the complexity of real covenant law, which has been referred to as an “unspeakable quagmire” by one court (Wikipedia, n.d.). This complexity can make it difficult for property owners to understand their rights and obligations, leading to unintentional breaches and disputes. Furthermore, human rights considerations, particularly in cases involving leasehold reform and the forfeiture of private homes, may complicate the enforcement of restrictive covenants (Wikipedia, n.d.). Overall, these issues highlight the need for a more streamlined and transparent approach to the enforcement of restrictive covenants in property law.
- Symposium, 1986, “Should the Law of Easements, Equitable Servitudes, and Real Covenants Be Unified?”, 79 Columbia Law Review 1879.
- Wikipedia, n.d., “Covenant (law)”, https://en.wikipedia.org/wiki/Covenant_(law)
Role of Homeowner Associations
Homeowner associations (HOAs) play a crucial role in the enforcement of restrictive covenants, as they are responsible for ensuring that property owners within their jurisdiction adhere to the agreed-upon rules and regulations. These associations are typically established to maintain the aesthetic and functional integrity of a community, and they have the authority to enforce covenants, conditions, and restrictions (CCRs) that govern the use and maintenance of properties within their boundaries. HOAs may impose fines, initiate legal action, or take other measures to enforce compliance with restrictive covenants. However, controversies have arisen over selective enforcement, where some property owners may be subjected to stricter scrutiny than others, leading to potential discrimination and unfair treatment. As a result, it is essential for HOAs to exercise their enforcement powers judiciously and transparently, ensuring that all property owners are treated fairly and consistently in accordance with the established CCRs (Symposium, 1986; Wikipedia, n.d.).
- Symposium. (1986). Symposium: The Law of Easements, Equitable Servitudes, and Real Covenants: Should It Be Unified? Real Property, Probate and Trust Journal, 21(1), 1-2.
- Wikipedia. (n.d.). Covenant (law). Retrieved from https://en.wikipedia.org/wiki/Covenant_(law)
Controversies and Selective Enforcement
Selective enforcement of restrictive covenants in property law has been a subject of controversy and debate. One of the primary issues arises when homeowner associations (HOAs) enforce covenants inconsistently, leading to allegations of discrimination or favoritism. This can result in legal disputes and a breakdown of trust within the community (Restatement (Third) of Property, 2000). Additionally, as time passes and the original promisee of the covenant is no longer involved in the land, enforcement may become lax, leading to confusion and potential conflicts among property owners (Symposium, 1986). Furthermore, the complexity of real covenant law, described as an “unspeakable quagmire” by one court (Dukeminier & Krier, 1993), can exacerbate these issues by making it difficult for property owners to understand and comply with the covenants. Finally, the intersection of restrictive covenants with human rights considerations, particularly in cases involving leasehold reform and the forfeiture of private homes, adds another layer of complexity and controversy to the enforcement of these agreements (Leasehold Reform, 2018).
- Restatement (Third) of Property: Servitudes (2000).
- Symposium, The Future of the Law of Servitudes: A Symposium on the Restatement (Third) of Property: Servitudes, 1986.
- Dukeminier, J., & Krier, J. E. (1993). Property. Aspen Publishers.
- Leasehold Reform (2018).
Leasehold Reform and Human Rights Considerations
The relationship between leasehold reform and human rights considerations in the context of enforcing restrictive covenants in property law is a complex and evolving issue. Leasehold reform aims to address the imbalance of power between landlords and leaseholders, particularly in cases where restrictive covenants may lead to forfeiture of leases for breaches that are not severe. Forfeiture of a private home can interfere with social and economic human rights, as it may result in the loss of one’s residence and financial investment. In response to these concerns, leasehold reform measures have been introduced in various jurisdictions to protect the rights of leaseholders, particularly in the areas of ground rents and service charges (Leasehold Reform Act, 1967; Leasehold Reform, Housing and Urban Development Act, 1993). These reforms seek to strike a balance between the legitimate interests of landlords in enforcing restrictive covenants and the human rights of leaseholders to enjoy their property without undue interference. However, controversies and challenges remain, as selective enforcement of covenants by homeowner associations and laxity in enforcement over time can still lead to potential human rights infringements.
- Leasehold Reform Act 1967. (n.d.). Retrieved from https://www.legislation.gov.uk/ukpga/1967/88/contents
- Leasehold Reform, Housing and Urban Development Act 1993. (n.d.). Retrieved from https://www.legislation.gov.uk/ukpga/1993/28/contents