Fisher Law Corporation’s Frequently Asked Questions

The following are select subjects which are representative of the type of law we practice. Peruse the articles: If you don't find a subject that interests you, call us or e-mail us with your request.

Notice: The information contained in these articles is designed to provide accurate information in regard to the subject matters covered and is made available with the understanding that the information provided does not constitute the rendering of legal or professional services. All information is of a general nature, is specific to California law only, and is not intended to to replace professional or legal advice. Each person’s situation is unique and the information contained herein cannot be applied to any individual’s situation. If legal advise is required, the services of a professional should be sought.


What is an all-inclusive deed of trust? »

What is CERCLA? »

How does a condominium differ from a house? »

What are Covenants that run with the land? »

What is a deed in lieu of foreclosure? »

What are easements? »

What are Encroachments? »

How does escrow work? »

What is fire and flood insurance? »

How do foreclosures work? »

What are the different forms of doing business? »

What do trade terms mean? »

What are liquidated damages in real property contracts? »

What is a Lis Pendens? »

How do loan modifications work? »

What is a Mechanic’s Lien? »

How does a Multiple Listing Service work? »

What is an off-shore trust? »

How do real property taxes work? »

What is Procuring Cause? »

What is a Quitclaim Deed? »

What is RESPA? »

Who bears the risk of loss during escrow? »

What are second deeds of trust? »

What is the Statute of Frauds? »

What is Statute of Limitations on Debts Secured By a Mortgage? »

Does a buyer’s broker have a duty to inspect? »

What is The Parol Evidence Rule? »

What is Adverse Possession? »

 


Q. What are Covenants that run with the land?

A. A covenant is an agreement by one party to do or not to do an act; the act usually concerns the use of the land of the person making the promise, and it affects the land of the party to whom the promise is made.

The person making the promise is called the “covenantor,” and the person to whom the promise is made is called the “covenantee.” If the covenantor breaches the agreement, the covenantee can recover damages. In certain cases, he can compel the covenantor to perform his promise. Also, since enforcement of the covenant is an action in equity, the court can fashion any remedy which it believes to be equitable under the circumstances, even though the particular remedy is not requested in the prayer.

One of the distinctive features of a covenant as distinguished from a condition is that a condition is created by the mutual agreement of the parties and is binding on both, but a covenant is an agreement by the covenantor only.

When considering the enforcement of a covenant in a deed, several issues need to be distinguished. When the covenant is contained in a deed or in a separate agreement between property owners, the parties are in privity of contract and it is immaterial as to them whether the covenant “runs with the land,” since the covenant can be enforced between the parties under the usual principles of contract law.

More difficult questions are raised when the covenantor or the covenantee, or both, convey their estates in the property. In such cases, the question is whether the covenant runs with the land such that it is enforceable against, or enforceable by, the grantee. To determine this question it is necessary to distinguish whether the covenant imposes a benefit or a burden on the land, whether the grantee is a successor of the covenantor or the covenantee, and whether the defendant is the original covenantor, or a successor of the original covenantor.

The distinguishing characteristic of a covenant that runs with the land is that both the liability for its performance and the right of enforcement pass with the transfer of the estate in the property; such a covenant is binding on subsequent transferees of the property, although they do not contractually assume any responsibility for its performance. However, since both the benefits and burdens “run with the land,” the covenantee ordinarily is not entitled to enforce the covenant following his transfer of the benefitted property. Also, no one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits.

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