Monday, February 13, 2012

Nonpossessory Estates (Easements and Covenants)

"I don't think I saw a post distinguishing easements from covenants running with the land. This is also an area that I easily confuse. I haven't been able to get much clarification from my notes, so if you have time to do this post it would be helpful."


Easements, and covenants are both nonpossessory interests in land, but beyond that, there is much to distinguish them. A person who holds an easement has the right to use another's tract of land for a particular person. For MBE purposes, some heavily tested areas in respect to easements involve the creation, (including expressly and impliedly created easements), as well as the termination of easements.

Covenants, normally found in deeds, are written promises to do something on the land, or written promises to refrain from doing something on the land. The most heavily tested area in respect to covenants deals with determining whether a covenant "runs with the land," so that subsequent owners are benefited or burdened by the covenant regardless as to whether the covenant was in their specific deed.

Both the burden and the benefit of the covenant can run with the land. For the burden to run, the original covenanting parties must have: (1) intended that successors in interest would be bound; (2) the subsequent purchaser for value must have had notice (actual, inquiry or record) of the covenant; (3) there has to have been horizontal privity between the original covenanting parties (for example a grantor-grantee relationship); (4) there has to have been vertical privity (the subsequent purchaser must hold the entire durational interest held by the covenantor at the time he made the covenant; and (5): the covenant must touch and concern the land.

The requirements for the benefit of the covenant to run with the land are the same, though there are less of them. Intent, vertical privity, and touch and concern, are all that is required.

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