Covenants and Equitable Servitudes

The previous chapter examined licenses, which grant personal, generally revocable permission to enter or use another person's land. Together with easements, licenses complete the group of doctrines addressing rights to use the property of another.

Earlier chapters in this volume addressed ownership, possession, and the various rights to use another's land. This chapter turns to a different question: whether promises about how land itself may be used can continue to bind future owners after the property is sold.

The answer is often yes.

Property law recognizes certain promises concerning the use of land that may continue to affect the property long after the original parties have transferred ownership. These doctrines—real covenants and equitable servitudes—are fundamental to modern subdivisions, planned communities, commercial developments, and private land-use regulation. (Legal Information Institute)

Covenants regulate how land may be used. They do not determine who owns the land or who may enter it.

A covenant is a legally enforceable promise, contained in a deed or other written instrument, that requires or prohibits certain conduct concerning land.

Not every promise about land, however, continues to bind future owners. Property law distinguishes between two categories:

• Personal covenants bind only the original contracting parties and do not affect successors in ownership.
• Real covenants concern the use of land and may run with the land, binding future owners when the legal requirements are satisfied.

The distinction is fundamental. A personal covenant ends when the property changes hands. A real covenant may continue to govern the land indefinitely.

Private land-use agreements arise from practical needs that public land-use regulation cannot always address.

Covenants commonly serve to:

• preserve neighborhood character;
• establish architectural standards;
• restrict developments to residential use;
• impose maintenance obligations;
• govern shared infrastructure such as private roads and common areas;
• support the operation of homeowners' associations;
• regulate commercial developments and use of tenant space.

As planned communities expanded in the twentieth century, private land-use arrangements grew increasingly important. Developers relied on covenants to give purchasers assurance about the future character of the community, and courts developed the surrounding doctrines to make those assurances enforceable across generations of owners.

A real covenant is a promise concerning land that, when the required conditions are satisfied, may bind successors in ownership. Real covenants were historically enforced at law through money damages. (Legal Information Institute)

The traditional requirements for a real covenant to run with the land include:

• writing—the promise must appear in a deed or other written instrument;
• intent—the original parties must have intended the promise to bind successors;
• touch and concern—the promise must relate to the use, value, or enjoyment of the land;
• privity—a recognized relationship must connect the original parties and their successors;
• notice—the successor must have had appropriate notice of the covenant.

An equitable servitude is a similar land-use promise, developed by the courts of equity, that is traditionally enforced through injunctive relief rather than money damages. (Legal Information Institute)

The principal requirements for an equitable servitude are:

• writing, or a recognized exception such as the doctrine of implied reciprocal servitudes;
• intent that the restriction bind successors in ownership;
• notice—actual, constructive, or inquiry—on the part of the successor;
• touch and concern—the restriction must relate to the use or enjoyment of the land.

Notably, traditional privity requirements associated with real covenants do not generally apply to equitable servitudes. This distinction reflects the doctrines' different historical origins: real covenants developed in the common-law courts, while equitable servitudes emerged in the courts of equity. (Legal Information Institute)

The two doctrines address similar problems but developed along parallel tracks in the historical courts.

Modern courts sometimes blur these historical distinctions, and the Restatement (Third) of Property: Servitudes has proposed unifying the two doctrines under a single framework. The traditional categories, however, remain foundational for reading older instruments, understanding decided cases, and analyzing which remedies are available in a given dispute.

When a covenant or equitable servitude "runs with the land," its legal effect passes to future owners of the affected parcels.

Four ideas structure this analysis:

• Burden—the obligation to comply with the promise, borne by the owner of the restricted land.
• Benefit—the right to enforce the promise, held by the owner of the land that receives its protection.
• Successors—later owners who take title from the original parties.
• Notice—the successor's awareness, actual or constructive, that the restriction exists.

Restrictive covenants shape a substantial portion of the American built environment. They appear in:

• residential subdivisions;
• planned communities and master-planned developments;
• homeowners' associations and condominium regimes;
• commercial and mixed-use developments;
• architectural review programs;
• detailed use restrictions imposed on individual parcels.

Common examples of restrictive covenants include:

• prohibitions on commercial use;
• minimum setback requirements;
• building height limits;
• exterior appearance and materials requirements;
• prohibitions on temporary structures, signage, or specified activities;
• obligations to pay association dues or contribute to shared maintenance.

The language that creates covenants often appears in a small number of recurring forms. Recognizing these patterns is a foundational skill for reading deeds and declarations.

• A covenant is not an easement. Easements grant a right to use land. Covenants generally impose restrictions on how land may be used. (LII)
• Covenants generally regulate use, not access. A covenant does not itself give anyone the right to enter the burdened land.
• Not every promise in a deed runs with the land. Many deed provisions are personal to the original parties and do not affect successors.
• Real covenants and equitable servitudes are related but historically distinct. They arose in different courts, developed different requirements, and offered different remedies.

Covenants and equitable servitudes appear across a wide range of practical settings:

• Title examination—recorded covenants and declarations must be identified, read, and reported.
• Subdivision development—developers draft declarations of covenants, conditions, and restrictions to govern future ownership.
• HOA governance—associations administer, interpret, and enforce covenants against member owners.
• Real estate transactions—buyers, lenders, and title insurers evaluate the effect of existing restrictions on the intended use.
• Commercial projects—leases and reciprocal easement agreements often incorporate detailed use restrictions.
• Neighborhood restrictions—long-established covenants continue to shape older residential areas.
• Litigation over land use—disputes frequently turn on whether a particular restriction is enforceable and against whom.

• Real covenants and equitable servitudes are promises concerning the use of land.
• They may bind future owners when the applicable legal requirements are satisfied.
• Real covenants were traditionally enforced through money damages.
• Equitable servitudes were traditionally enforced through injunctions.
• The traditional privity requirement applies to real covenants but not, in the same form, to equitable servitudes.
• Together, these doctrines form the foundation of modern private land-use regulation, including subdivisions, planned communities, and homeowners' associations.

Next Chapter — Adverse Possession

The next chapter examines one of the oldest and most debated doctrines in property law: adverse possession. Readers will learn how, under limited circumstances established by statute and common law, possession maintained for the required period and under the required conditions may affect ownership rights. The chapter shifts from consensual land-use arrangements to the legal consequences of long-term possession.