Real Covenants and Equitable Servitudes

Chapters 21 and 22 examined the two affirmative nonpossessory interests that one person may hold in the land of another: the easement, a right to use, and the profit à prendre, a right to take. Both are conveyances. The grantor parts with a fragment of dominion, and the fragment, once carved out, is an interest in land that binds the servient estate in the hands of every successor because it is property and property runs with the thing. This chapter concerns a different mechanism. A real covenant and an equitable servitude begin not as conveyances but as promises — undertakings that land shall be used, or shall not be used, in a stated way. A promise binds the promisor because he made it. The question that has occupied Anglo-American courts for four centuries is when a promise concerning land also binds a stranger who never made it, and what remedy that stranger's breach affords. The common law answered the question in Spencer's Case in 1583, tightly, through the doctrines of privity and touch and concern. Chancery answered it again in Tulk v. Moxhay in 1848, loosely, through the conscience of the purchaser with notice. The two answers coexisted, uneasily and often incoherently, until the Restatement (Third) of Property: Servitudes abolished the distinction in 2000.

1. A real covenant is a promise respecting the use of land that is enforceable at law against successors, with damages as the remedy. Its historic requirements are a writing satisfying the Statute of Frauds, intent that the promise run, touch and concern, horizontal privity between the original covenanting parties, and vertical privity between the covenantor and the defendant successor. Restatement (First) of Property §§ 530–555 (1944).
2. An equitable servitude is the same promise enforced in equity against a successor who took with notice, with the injunction as the remedy. Its requirements are a writing (or a common plan), intent, touch and concern, and notice. Neither horizontal nor vertical privity is required. Tulk v. Moxhay, (1848) 41 Eng. Rep. 1143 (Ch.).
3. The distinction between the two doctrines is a distinction of remedy and of proof, not of substance. A single promise may be both, and the plaintiff who seeks an injunction proves an equitable servitude while the plaintiff who seeks damages must prove a real covenant. This is the principal source of the field's notorious complexity.
4. The burden and the benefit run separately and on different terms. The burden — the obligation to perform — is held to the strictest requirements, because it encumbers land in the hands of a person who did not promise. The benefit — the right to enforce — runs more freely, and at common law required no horizontal privity and only relaxed vertical privity.
5. Touch and concern asks whether the promise relates to the enjoyment, use, or value of the land as land, rather than to the promisor personally. Restrictions on use touch and concern almost invariably; affirmative obligations to pay money were long doubted and are now generally sustained where the payment supports the burdened land. Neponsit Property Owners' Ass'n v. Emigrant Industrial Savings Bank, 15 N.E.2d 793 (N.Y. 1938).
6. Horizontal privity is a requirement of the running of the burden at law only, and only in some jurisdictions. England required tenurial privity; Massachusetts and the majority American rule accept instantaneous privity — a covenant contained in the deed of conveyance itself; a minority requires no horizontal privity at all. Restatement (Third) § 2.4 abolishes it.
7. Vertical privity concerns the relationship between the covenanting party and his successor. Strict vertical privity — succession to the entire estate — was required for the burden at law; relaxed vertical privity — succession to any interest — sufficed for the benefit. Equity requires neither, so an adverse possessor or a lessee may be bound by an equitable servitude.
8. Notice is the foundation of equitable enforcement. Actual notice, constructive (record) notice, and inquiry notice arising from the visible character of a neighbourhood each suffice. A bona fide purchaser for value without notice takes free of the servitude, whatever its formal validity.
9. A common plan of development may generate reciprocal negative servitudes implied against lots the developer conveyed without express restriction. The plan must have existed at the time of the first conveyance, and the purchaser must be chargeable with notice of it. Sanborn v. McLean, 206 N.W. 496 (Mich. 1925).
10. Affirmative covenants to pay assessments are the structural foundation of the modern common-interest community. They run because the association performs functions that benefit the burdened land, and the assessment is enforceable in personam and as an equitable lien on the lot.
11. The remedy determines the doctrine invoked; the doctrine does not determine the remedy. Damages at law compensate breach already committed; the injunction restrains breach continuing or threatened; and equity may deny the injunction and award damages where the hardship of enforcement is disproportionate to the benefit.
12. Changed conditions terminate a servitude only when the change is so radical that the original purpose can no longer be substantially achieved. Change outside the restricted area, however dramatic, does not suffice while the interior of the tract retains its restricted character. Western Land Co. v. Truskolaski, 495 P.2d 624 (Nev. 1972).
13. Waiver, abandonment, acquiescence, estoppel, and unclean hands are personal or general defences of distinct scope. Acquiescence in a neighbour's violation bars enforcement against that neighbour; a general pattern of tolerated violations may abandon the scheme as a whole.
14. Restatement (Third) of Property: Servitudes unifies easements, profits, covenants, and equitable servitudes into a single law of servitudes. It abolishes horizontal privity (§ 2.4), replaces touch and concern with a direct test of validity against public policy (§ 3.1), and states uniform rules of succession (§§ 5.1–5.9) and of modification and termination (§§ 7.1–7.15).
15. Racially restrictive covenants are unenforceable and void. Judicial enforcement is state action forbidden by the Fourteenth Amendment, Shelley v. Kraemer, 334 U.S. 1 (1948); damages are equally barred, Barrows v. Jackson, 346 U.S. 249 (1953); and the Fair Housing Act, 42 U.S.C. §§ 3604–3617, independently prohibits them. Restatement (Third) § 3.1(1).

On completing this chapter the reader should be able to:

1. Define the real covenant and the equitable servitude and state precisely how each differs from the other and from the easement, the profit, the licence, and the personal contract.
2. Trace the historical development of promissory servitudes from the medieval warranty and Spencer's Case through Tulk v. Moxhay to the Restatement (Third).
3. Explain why the division between courts of law and courts of equity produced two doctrines governing a single transaction.
4. State and apply the requirements for the running of the burden at law: writing, intent, touch and concern, horizontal privity, and vertical privity.
5. State and apply the requirements for the running of the benefit, and explain why they are less demanding than those for the burden.
6. Distinguish actual, constructive, and inquiry notice, and determine when a purchaser takes free of a servitude.
7. Identify a common plan of development and determine whether reciprocal negative servitudes arise by implication.
8. Analyze the enforceability of affirmative covenants, including assessment obligations in common-interest communities.
9. Select and justify the appropriate remedy — damages, injunction, or both — and anticipate equitable defences.
10. Apply the doctrines of changed conditions, relative hardship, waiver, abandonment, acquiescence, estoppel, merger, and release.
11. Examine title for recorded restrictions and advise on drafting, recording, amendment, and curative practice.
12. Evaluate the Restatement (Third)'s unified servitude framework against the classical two-track doctrine.

The rules stated in this chapter rest upon the following primary sources. Jurisdiction-specific statutes are cited as representative; the governing law of the situs controls.

• Restatement positions. Restatement (Third) of Property: Servitudes § 1.3 (covenants running with land), § 2.1 (creation), §§ 2.2–2.6 (writing, estoppel, implication, privity abolished), §§ 2.11–2.14 (implication from a general plan), § 3.1 (validity; touch and concern superseded), §§ 3.4–3.6 (restraints on alienation and unreasonable servitudes), §§ 4.1–4.10 (interpretation and scope), §§ 5.1–5.9 (succession to benefits and burdens), § 6.2 et seq. (common-interest communities), §§ 7.1–7.15 (modification and termination, including § 7.10 changed conditions) (Am. L. Inst. 2000); Restatement (First) of Property §§ 530–555 (1944) (real covenants: intent, privity, touch and concern), §§ 539–540, 548 (running of benefit and burden).
• Historical English authorities and statutes. Spencer's Case, (1583) 77 Eng. Rep. 72 (K.B.); Tulk v. Moxhay, (1848) 41 Eng. Rep. 1143 (Ch.); Keppell v. Bailey, (1834) 39 Eng. Rep. 1042 (Ch.); London County Council v. Allen, [1914] 3 K.B. 642; Austerberry v. Oldham Corp., (1885) 29 Ch. D. 750 (burden of affirmative covenants does not run at law); Rhone v. Stephens, [1994] 2 A.C. 310 (H.L.); Quia Emptores, 18 Edw. 1, c. 1 (1290); Statute of Frauds, 29 Car. 2, c. 3, §§ 1–4 (1677); Law of Property Act, 1925, 15 & 16 Geo. 5, c. 20, §§ 78–79, 84 (statutory modification and discharge of restrictive covenants).
• Federal constitutional and statutory limits. U.S. Const. amend. XIV, § 1; Shelley v. Kraemer, 334 U.S. 1 (1948); Barrows v. Jackson, 346 U.S. 249 (1953); Fair Housing Act, 42 U.S.C. §§ 3604, 3617; Civil Rights Act of 1866, 42 U.S.C. § 1982; Americans with Disabilities Act and Fair Housing Amendments Act accommodation requirements, 42 U.S.C. § 3604(f)(3).
• Uniform and model legislation. Uniform Common Interest Ownership Act §§ 1-103, 2-101 to 2-124, 3-102, 3-115, 3-116 (Unif. L. Comm'n 1982, as amended 2008); Uniform Condominium Act (1980); Uniform Planned Community Act (1980); Uniform Conservation Easement Act (1981); Model Marketable Title Act §§ 2–4.
• Representative state statutes. Cal. Civ. Code §§ 1462–1470, 4000–6150 (Davis–Stirling Common Interest Development Act), § 885.010 et seq. (Marketable Record Title); N.Y. Real Prop. Actions & Proc. Law § 1951 (extinguishment of restrictions of no actual and substantial benefit); Mass. Gen. Laws ch. 184, §§ 26–30 (thirty-year limitation and enforcement standards); Fla. Stat. §§ 712.01–712.12 (Marketable Record Title Act), ch. 720 (homeowners' associations); Tex. Prop. Code chs. 202, 204, 209; Minn. Stat. § 500.20 (limitation of restrictions).
• Recording statutes. Race, notice, and race–notice recording acts of the several states, e.g., N.C. Gen. Stat. § 47-18 (race); Cal. Civ. Code § 1214 (race–notice); Mass. Gen. Laws ch. 183, § 4 (notice); Guillette v. Daly Dry Wall, Inc., 325 N.E.2d 572 (Mass. 1975), and Witter v. Taggart, 577 N.E.2d 338 (N.Y. 1991) (deeds out of the chain of title).
• Leading American decisions. Neponsit Property Owners' Ass'n v. Emigrant Industrial Savings Bank, 15 N.E.2d 793 (N.Y. 1938) (affirmative covenant to pay assessments; touch and concern; association standing); Sanborn v. McLean, 206 N.W. 496 (Mich. 1925) (reciprocal negative easement; inquiry notice); Snow v. Van Dam, 197 N.E. 224 (Mass. 1935) (common scheme); Evans v. Pollock, 796 S.W.2d 465 (Tex. 1990) (defined restricted portion of a tract); Western Land Co. v. Truskolaski, 495 P.2d 624 (Nev. 1972) (changed conditions rejected); Rick v. West, 228 N.Y.S.2d 195 (Sup. Ct. 1962) (injunction granted to a single holdout); Bolotin v. Rindge, 30 Cal. Rptr. 897 (Ct. App. 1963) (restriction of no substantial value); El Di, Inc. v. Town of Bethany Beach, 477 A.2d 1066 (Del. 1984) (changed conditions applied); Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275 (Cal. 1994) (reasonableness of recorded use restrictions); Davidson Bros. v. D. Katz & Sons, 579 A.2d 288 (N.J. 1990) (reasonableness supplants touch and concern); Whitinsville Plaza, Inc. v. Kotseas, 390 N.E.2d 243 (Mass. 1979) (anticompetitive covenants); Runyon v. Paley, 416 S.E.2d 177 (N.C. 1992) (real covenant and equitable servitude requirements distinguished); Eagle Enterprises, Inc. v. Gross, 349 N.E.2d 816 (N.Y. 1976) (affirmative covenant to accept water); Caullett v. Stanley Stilwell & Sons, 170 A.2d 52 (N.J. Super. Ct. App. Div. 1961) (benefit in gross; touch and concern).

Secondary authority is used here only to organize and explain the primary sources.

• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) *384b–*385a (1628) — warranty, covenant, and the annexation of obligation to the estate.
• 2 William Blackstone, Commentaries on the Laws of England *304–*306 (1766) — covenants real and the incidents of tenure.
• 4 James Kent, Commentaries on American Law *480–*482 (1830) — the American reception of covenants running with the land.
• Charles James Gale, A Treatise on the Law of Easements (1839; 20th ed. 2020) — the boundary between easement and restrictive covenant.
• Emory Washburn, A Treatise on the American Law of Easements and Servitudes ch. 1, §§ 1–8 (4th ed. 1885) — negative easements and the reception of Tulk.
• 2 Herbert Thorndike Tiffany, The Law of Real Property §§ 848–866 (3d ed. 1939) — the classical American synthesis of covenants and servitudes.
• 1 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 34–40, 226–230 (2d ed. 1898) — warranty, tenure, and the medieval covenant.
• A. W. B. Simpson, A History of the Land Law 116–120, 256–260 (2d ed. 1986) — the fate of the covenant after Quia Emptores.
• J. H. Baker, An Introduction to English Legal History chs. 6, 17 (5th ed. 2019) — the jurisdictional division between law and Chancery.
• Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261 (1982) — the intellectual foundation of the Restatement (Third).
• Susan F. French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop. Prob. & Tr. J. 225 (2000).
• Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. Cal. L. Rev. 1177 (1982).
• Charles E. Clark, Real Covenants and Other Interests Which "Run with Land" (2d ed. 1947) — the classical American monograph and the source of the modern touch-and-concern analysis.
• Lawrence Berger, A Policy Analysis of Promises Respecting the Use of Land, 55 Minn. L. Rev. 167 (1970).
• Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. Cal. L. Rev. 1353 (1982).
• 9 Powell on Real Property §§ 60.01–60.11 (Michael Allan Wolf ed.) — covenants and servitudes in current practice.
• 2 American Law of Property §§ 9.1–9.40 (A. James Casner ed. 1952).
• Robert G. Natelson, Law of Property Owners Associations (1989).
• Gerald Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes (2d ed. 2004).

A real covenant is a promise respecting the use of land, contained in a writing that satisfies the Statute of Frauds, which the law will enforce by an action for damages not only against the promisor but against those who succeed to his estate. An equitable servitude is a promise respecting the use of land which equity will enforce by injunction against anyone who takes the burdened land with notice of it, whether or not that person is a successor to the promisor's whole estate and whether or not the technical requirements of the real covenant are satisfied. The two definitions describe, in the ordinary case, one and the same undertaking viewed through two jurisdictional lenses. A single sentence in a deed — "the grantee covenants for himself, his heirs and assigns that no structure other than a single-family dwelling shall be erected upon the premises" — is a real covenant when the plaintiff sues for damages and an equitable servitude when he seeks an injunction.

Three elements are common to both. First, the obligation is promissory in origin. It does not carve a fragment of dominion out of the servient estate, as an easement or profit does; it binds the servient owner's conduct. Second, the obligation is annexed to land: it is created with the intent that it shall benefit and burden the parties' respective estates rather than their persons only, and it passes with those estates without further mention. Third, the obligation is enforceable against strangers to the promise. It is this third element that makes the covenant a servitude rather than a contract, and it is on this element alone that the law has expended four centuries of doctrinal ingenuity.

The subject matter may be negative or affirmative. A restrictive covenant forbids: no commercial use; no building within thirty feet of the street line; no structure exceeding two storeys; no sign, no fence, no outbuilding, no animal husbandry. An affirmative covenant requires: to maintain a party wall, to keep a boundary fence in repair, to supply water, to pay an annual assessment for the maintenance of common roads and beaches. English law refused to let the burden of an affirmative covenant run at law or in equity, a rule laid down in Austerberry v. Oldham Corporation in 1885 and reaffirmed by the House of Lords in Rhone v. Stephens in 1994. American law took the opposite course, and the affirmative covenant to pay assessments has become the financial spine of the common-interest community examined in Chapter 24.

The medieval ancestor of the running covenant is the warranty of title. A feoffor who warranted the land to his feoffee bound himself, and his heirs to the extent of assets descended, to defend the tenant's seisin and to render lands of equal value if the tenant was evicted by paramount title. The warranty ran with the estate because it was conceived as annexed to the tenure itself, and the machinery of voucher to warranty was among the most familiar operations of the medieval real actions. Pollock and Maitland describe the warranty as the closest thing the common law then possessed to an obligation attached to land rather than to a person, and it supplied the vocabulary — heirs and assigns, annexation, running — that the law of covenants later borrowed.

Quia Emptores in 1290 destroyed the general utility of that model. By prohibiting subinfeudation and requiring that every conveyance in fee substitute the grantee for the grantor in the tenurial chain, the statute eliminated the continuing lord–tenant relationship between grantor and grantee of a fee. What remained was the leasehold, in which the relationship persisted for the term, and it was in the leasehold that the doctrine of running covenants developed. The great case is Spencer's Case, decided in the King's Bench in 1583 and reported by Coke. A lessee covenanted for himself, his executors, and administrators to build a brick wall upon the demised premises; he assigned the term, and the question was whether the assignee was bound. The court resolved that a covenant concerning a thing in esse, parcel of the demise, runs with the land and binds the assignee though not named, but that a covenant concerning a thing not in esse — a wall not yet built — binds the assignee only if assigns are expressly named. The court added the second, more durable resolution: a covenant that is merely collateral to the land, touching neither its use nor its enjoyment, does not run at all, however the parties may name assigns.

Spencer's Case thus fixed two of the modern requirements — intent, evidenced by the naming of assigns, and touch and concern — and its association of the running covenant with the tenurial relation between lessor and lessee generated a third: privity of estate. In England the requirement of privity was understood tenurially and strictly, so that a covenant between neighbouring freeholders, having no tenurial relation, could not run at law at all. That conclusion, reached in Keppell v. Bailey in 1834, left the law without any mechanism for the private planning of freehold land at the very moment when industrial urbanization made such planning indispensable.

Lord Brougham's reasoning in Keppell v. Bailey deserves attention because its policy premise still shapes the field. He held that the owner of a colliery could not bind his successors to purchase limestone from a particular quarry and transport it on a particular railway, and he grounded the holding not in technicality but in the numerus clausus: parties may not invent new species of incorporeal interests and fasten them upon land, because purchasers cannot be expected to discover obligations of unlimited variety, and land so encumbered would become unmarketable. Every subsequent enlargement of the running covenant — Tulk v. Moxhay itself, the American abandonment of horizontal privity, the Restatement (Third)'s general validity rule — has had to answer Brougham's objection, and each has answered it with the same currency: recording and notice.

In 1808 Charles Augustus Tulk, who owned the garden square in Leicester Square together with several surrounding houses, sold the garden to one Elms, who covenanted for himself, his heirs, and assigns to maintain the square as an open pleasure ground, uncovered by buildings, and to permit the inhabitants of the surrounding houses to use it on payment of a reasonable rent. The land passed through several hands to Moxhay, whose deed did not contain the covenant but who admitted knowledge of it. Moxhay proposed to build. Tulk, still owning houses in the square, sought an injunction.

At law the claim was hopeless. There was no tenurial privity between Tulk and Elms, and under Keppell v. Bailey no covenant between freeholders could run. Lord Cottenham granted the injunction on a ground that avoided the question altogether. The issue, he said, is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and of which he had notice when he purchased. If equity did not intervene, it would be impossible for an owner to sell part of his land without the risk of the purchaser's immediately destroying the value of what he retained; and the purchaser with notice, who necessarily paid a price discounted by the restriction, would take a benefit at his vendor's expense.

The reasoning is unmistakably conscience-based, and in its earliest form it approached a general principle that any contract affecting land binds a purchaser with notice — a principle that, if unchecked, would have made all contracts specifically enforceable against third parties. The English courts curbed it within a generation. London County Council v. Allen in 1914 held that the plaintiff must own land benefited by the covenant, so that the covenantee's retained land, and not merely his contractual interest, is what equity protects; and Haywood v. Brunswick Permanent Benefit Building Society in 1881 and the Austerberry line confined the doctrine to negative covenants. What survived is a doctrine of property: the equitable servitude burdens the land itself, and the person with notice takes subject to it not because he promised but because his estate is encumbered.

American courts received Tulk almost immediately — Whitney v. Union Railway Co. in Massachusetts in 1858, Trustees of Columbia College v. Lynch in New York in 1877 — and applied it with far greater freedom than the English courts allowed. Two American departures were decisive. First, American law permitted the burden of affirmative covenants to run in equity, subject to touch and concern. Second, American law permitted equitable servitudes to be implied from a common plan of development, a doctrine the English courts approached through the narrower building-scheme rules of Elliston v. Reacher. Together these two departures made possible the restricted residential subdivision, and after it the modern common-interest community.

The coexistence of two bodies of law governing one transaction is not the product of doctrinal confusion but of institutional history. Until the Judicature Acts of 1873–75 in England, and until the merger statutes and code-pleading reforms of the nineteenth and twentieth centuries in the several American states, the common-law courts and the Court of Chancery were distinct tribunals administering distinct bodies of rule with distinct remedies. The common-law courts gave damages and applied the rules of Spencer's Case; Chancery gave the injunction and applied the rule of Tulk v. Moxhay. A litigant chose his forum, and his choice of forum determined the elements he had to prove.

Merger of the courts did not merge the doctrines. The requirements remained attached to the remedies, so that after merger a single judge might hold that a covenant was enforceable by injunction but not by damages — enforceable as an equitable servitude because the defendant had notice, unenforceable as a real covenant because horizontal privity was absent. Runyon v. Paley in North Carolina in 1992 is the standard modern illustration of a court working through both sets of requirements in a single opinion and reaching different conclusions under each. The Restatement (First) of Property in 1944 canonized the division by treating real covenants in one set of sections and equitable servitudes in another, a structure the Restatement (Third) later described as the source of unnecessary complexity.

The Restatement (Third) of Property: Servitudes ended the division as a matter of Institute doctrine. Section 1.4 provides that the terms real covenant and equitable servitude are subsumed within the single term covenant running with land; § 2.4 abolishes any requirement of privity of estate; § 3.1 replaces touch and concern with a direct inquiry into whether the servitude is illegal, unconstitutional, or violative of public policy; and §§ 8.1–8.3 make the full range of legal and equitable remedies available for the breach of any servitude, subject to ordinary equitable discretion. A substantial minority of American jurisdictions has adopted this framework in whole or in part; the remainder continue to apply the classical elements, and the practitioner must know both.

For the burden of a covenant to bind a successor at law, so that the successor is answerable in damages, five requirements must be satisfied. Each is examined in turn in the sections that follow; they are stated together here because their interaction, and not any one of them alone, is what defeats most claims.

1. A writing. The covenant must satisfy the Statute of Frauds, either in a deed signed by the grantor and accepted by the grantee or in a separate signed instrument. Acceptance of a deed poll containing the covenant binds the grantee though he does not sign.
2. Intent that the covenant run. The parties must have intended the obligation to bind successors. The traditional evidence is the phrase "heirs and assigns," but intent may be inferred from the nature of the covenant and the circumstances of the transaction.
3. Touch and concern. The covenant must relate to the use, enjoyment, or value of the burdened land as land, and not merely to the covenantor personally.
4. Horizontal privity. In most American jurisdictions the original covenanting parties must have had some relationship respecting the land independent of the covenant — typically, grantor and grantee in the conveyance containing the covenant.
5. Vertical privity. The defendant must have succeeded to the entire estate held by the covenantor at the time of the promise.

A sixth element, notice, is not strictly a common-law requirement of running, because the common law did not concern itself with the state of the successor's conscience. It operates instead through the recording acts: an unrecorded covenant is void as against a subsequent bona fide purchaser for value without notice under every American recording statute, so that in practice notice is indispensable to the enforcement of any servitude against a purchaser.

The requirement of intent asks whether the parties meant to create an obligation annexed to the land or a personal undertaking between themselves. Spencer's Case made the naming of assigns decisive for covenants concerning things not in esse, and the formula "for himself, his heirs, successors, and assigns" remains standard drafting; but the modern rule is that the words are evidence, not a talisman. Restatement (Third) § 2.2 provides that intent may be shown by the terms of the instrument, by the circumstances surrounding its creation, and by the purpose the servitude was intended to serve, and § 2.3 provides that no particular form of words is necessary.

Intent is most often litigated where the instrument is silent or ambiguous. A covenant contained in a subdivision declaration recorded before any lot is sold, running to "each and every lot," plainly evidences intent. A covenant in a single deed, phrased as a personal promise by the named grantee to the named grantor, may not. Courts look to whether the covenanting parties owned neighbouring land capable of being benefited, whether the covenant is of a kind ordinarily meant to endure, whether it was recorded, and whether a scheme of similar covenants exists. A covenant of a manifestly personal character — that the grantor may continue to stable his horse on the premises during his life — will not be construed to bind successors however the instrument is worded.

A distinct problem arises where the benefit is intended to be held in gross. Caullett v. Stanley Stilwell & Sons in New Jersey refused to enforce against a successor a covenant reserving to the grantor the right to build any dwelling later erected on the lot, reasoning both that the covenant did not touch and concern the burdened land in any adequate sense and that the benefit, being personal to a builder who retained no neighbouring land, gave the covenant the character of a commercial arrangement rather than a land-use plan. Restatement (Third) § 2.6 reverses the classical hostility and permits benefits in gross to run; conservation easements and utility covenants, statutory in most states, depend upon that reversal.

A covenant running with land is an interest in land within § 4 of the Statute of Frauds, 29 Car. 2, c. 3 (1677), and its American successors. The writing must identify the burdened and benefited land with reasonable certainty, state the substance of the obligation, and be signed by the party to be charged. In the ordinary conveyance the deed is signed by the grantor alone; the grantee who accepts the deed is bound by covenants it contains, on the theory that acceptance is an adoption of the instrument. Where the covenant is imposed by a subdivision declaration, the declaration signed by the developer and recorded before the sale of lots binds each purchaser who takes with record notice.

Three qualifications matter. First, the doctrine of part performance and the doctrine of estoppel may support enforcement of an oral restriction where a purchaser has substantially relied — Restatement (Third) § 2.9 recognizes servitudes by estoppel — but reliance must be substantial and referable to the promise. Second, the equitable servitude implied from a common plan is a recognized exception: reciprocal obligations are imposed on lots whose deeds contain no restriction at all, the writing requirement being satisfied by the recorded plat, the declaration, or the pattern of restricted deeds from the common grantor. Third, in registered-title systems and under the Torrens acts, an unregistered restriction is generally ineffective against a registered proprietor regardless of notice.

The requirement that a covenant touch and concern the land is the oldest of the running requirements after intent, the least susceptible of precise statement, and the one the Restatement (Third) has abolished. Its function is to distinguish obligations that are genuinely about land from obligations that merely happen to be undertaken by a landowner. Bigelow's classical test, adopted in Neponsit, asks whether the covenant alters the legal relations of the parties as landowners: if performance or forbearance renders the burdened land less valuable or the benefited land more valuable, in their character as land, the covenant touches and concerns.

Negative covenants restricting use present no difficulty; a prohibition on commercial activity plainly diminishes the burdened parcel and enhances the neighbours'. Affirmative covenants have been the battleground. Neponsit Property Owners' Association v. Emigrant Industrial Savings Bank in 1938 sustained a covenant to pay an annual assessment to a property owners' association for the maintenance of roads, paths, parks, and beaches, holding that the burden touched and concerned because the payment supported facilities essential to the enjoyment of the burdened lot, and that the association, though owning no land, could enforce as the agent of the lot owners in whom the benefit was vested. The opinion is the foundation of American common-interest community law. Eagle Enterprises v. Gross, by contrast, refused to enforce against a successor a covenant to accept and pay for seasonal water supplied by the grantor, holding that the obligation was in substance a personal commercial contract for the sale of a commodity, terminable and unrelated to the use of the land as land.

A related question is whether the benefit and the burden must both touch and concern for either to run. The classical answer, associated with the Restatement (First) § 537 and with Clark's monograph, is that the burden will not run at law unless the benefit also touches and concerns land — a rule that defeats commercial covenants benefiting a person rather than a parcel. Massachusetts abandoned the rule for anticompetitive covenants in Whitinsville Plaza v. Kotseas, and New Jersey in Davidson Bros. v. D. Katz & Sons replaced touch and concern altogether with a multi-factor reasonableness inquiry considering the intention of the parties, the reasonableness of the restriction's duration and area, the impact on competition and on the public interest, and whether the covenant was bargained for at arm's length.

The Restatement (Third) § 3.1 adopts the same solution generally: a servitude is valid unless illegal, unconstitutional, or contrary to public policy, and § 3.1 comment b explains that touch and concern is superseded because it functioned as an inarticulate proxy for the policy judgments the section now makes explicit — invalidating unreasonable restraints on alienation (§ 3.4), unreasonable restraints on trade (§ 3.6), and servitudes that are unconscionable (§ 3.7) or that lack any rational justification. Practitioners in jurisdictions that retain touch and concern should nonetheless plead and prove it; the safest drafting states expressly the land-related purpose the covenant serves.

Horizontal privity concerns the relationship between the original covenanting parties at the moment the covenant was made. Three positions exist. The English position, derived from the leasehold origin of the doctrine and from Keppell v. Bailey, required a tenurial relationship — landlord and tenant — with the consequence that no covenant between freehold neighbours could run at law. The Massachusetts or mutual-interest position required that the parties have simultaneous interests in the same land, as by an easement held by one in the land of the other. The prevailing American position, sometimes called instantaneous or successive privity, is satisfied where the covenant is contained in the instrument that conveys an estate between the covenanting parties — that is, in the deed itself.

The consequence of the prevailing rule is a drafting trap of great practical importance. Neighbours who covenant with one another by a separate written agreement, however carefully drawn and duly recorded, create no horizontal privity in a jurisdiction requiring it, and the burden of their covenant will not run at law. The same neighbours can achieve the result indirectly by conveying to a straw and taking back a deed containing the covenant, a device courts have long tolerated as satisfying the letter of the requirement while emptying it of function. Because equity requires no horizontal privity at all, the covenant will nonetheless be enforceable by injunction against successors with notice, and it is that circumstance, more than any argument of principle, that has discredited the requirement.

Restatement (Third) § 2.4 states flatly that no privity relationship between the parties is necessary to create a servitude, and comment b explains that the requirement served no function that recording and notice do not serve better. A significant number of American jurisdictions have followed, either by decision or by statute; others retain the requirement in name while satisfying it through the deed-conveyance formula. Counsel drafting neighbour-to-neighbour covenants should assume the strictest rule and structure the transaction accordingly.

Vertical privity concerns the relationship between a covenanting party and the person against whom, or by whom, enforcement is sought. The classical rule distinguishes the burden from the benefit. For the burden to run at law, strict vertical privity is required: the defendant must have succeeded to the entire estate held by the covenantor when the covenant was made. A grantee of the fee is in strict vertical privity; a lessee, a life tenant, or an adverse possessor is not. For the benefit to run at law, relaxed vertical privity suffices: the plaintiff need only have succeeded to some interest in the benefited land, so that a tenant may enforce.

Equity dispenses with vertical privity entirely. Because the equitable servitude burdens the land itself and binds all who take with notice, it reaches lessees, licensees, life tenants, mortgagees in possession, and adverse possessors alike. The practical importance is considerable: a residential restriction is enforceable against the tenant who operates a business on the premises, though the tenant holds no estate the covenantor ever held, and against the squatter whose possession has ripened into title, though he is no one's successor at all.

Restatement (Third) §§ 5.1–5.9 replaces vertical privity with a functional distinction between negative and affirmative covenants. The burden of a negative covenant runs to every subsequent possessor of the burdened land, whatever the quality of the possession (§ 5.2); the burden of an affirmative covenant runs to persons who succeed to estates of the same duration as the estate held by the original covenantor, with lessees liable for obligations more reasonably performed by the occupant and life tenants liable to the extent of the value of their interest (§ 5.3). The reform substitutes a rule keyed to who can sensibly perform for a rule keyed to conveyancing formality.

The benefit runs on easier terms than the burden, and for a reason of principle: the running of the benefit enlarges the class of persons who may enforce an obligation the defendant's predecessor voluntarily assumed, whereas the running of the burden imposes an obligation on a person who assumed nothing. No horizontal privity is required for the benefit at law; relaxed vertical privity suffices; and the benefit must touch and concern the land of the plaintiff. Where the covenant was made for the benefit of a defined tract, every successor to any part of that tract may enforce, unless the instrument provides otherwise.

Three questions of standing recur. The first is whether a covenantee who has parted with all benefited land may still enforce; the answer at common law is no, for the benefit was annexed to the land and departed with it, though the covenantee may retain a contract action against the original covenantor. London County Council v. Allen states the equitable rule to the same effect. The second is whether an association owning no land may enforce; Neponsit answered yes, treating the association as the agent or representative of the lot owners, and modern statutes now confer standing directly. Uniform Common Interest Ownership Act § 3-102(a)(4). The third is whether a municipality or a conservation organization may hold a benefit in gross; the classical answer was no, the modern answer, under Restatement (Third) § 2.6 and the Uniform Conservation Easement Act, is yes.

Where lots in a common scheme are successively conveyed, the direction of enforcement must be analyzed carefully. The developer's covenant with the first purchaser plainly benefits the developer's retained land, and successors to any part of that retained land may enforce against the first purchaser. Whether the first purchaser may enforce against a later purchaser is a different question, answered affirmatively by the common-plan doctrine on the theory that the developer impliedly promised the first purchaser that the remaining lots would be similarly restricted, and answered affirmatively in some jurisdictions on a third-party-beneficiary theory instead. The distinction matters where the plan is imperfectly implemented.

Notice is the condition of equitable enforcement and, through the recording acts, the practical condition of all enforcement against purchasers. Three forms are recognized and each is sufficient.

• Actual notice. Knowledge in fact of the restriction, however acquired — from the vendor, from a neighbour, from the title report, from a prior transaction. Moxhay himself admitted actual notice.
• Constructive or record notice. Notice imputed by law from the public records. A restriction contained in a recorded deed or declaration within the purchaser's chain of title charges him whether or not he searched. The scope of the chain of title is therefore critical, and jurisdictions differ on whether restrictions in deeds out from a common grantor to other lots are within it: Guillette v. Daly Dry Wall holds that they are; Witter v. Taggart holds that a deed out of the chain imparts no notice.
• Inquiry notice. Notice charged where the visible state of the land or of the neighbourhood would put a reasonable purchaser upon inquiry. A uniform street of detached single-family houses on uniformly set-back lots gives notice of a residential scheme; a recital in the purchaser's own deed referring to a declaration recorded elsewhere requires him to find and read it. Sanborn v. McLean is the leading case, charging a purchaser with inquiry notice of a reciprocal negative easement from the character of the surrounding development.

A purchaser for value who takes without any form of notice takes free of the servitude, and the servitude is thereafter unenforceable against him and, in most jurisdictions, against his successors, even successors with notice, under the shelter rule. Because the consequence is destruction of the restriction as to that parcel, careful practice records restrictions in a declaration referenced in every deed, indexes them against every lot, and includes them verbatim or by specific reference in the conveyance itself.

The subdivision developer conveys lots one at a time over a period of years. If each deed contains the restrictions, the burden on each lot is express and the only difficulty is the identification of the benefited parcels. But developers are imperfect, and deeds are omitted, mislaid, or deliberately unrestricted. The common-plan doctrine supplies the omission. Where a developer manifests a general plan or scheme of development for a defined tract, the restrictions of that plan may be implied against lots conveyed without express restriction, and every lot owner within the scheme may enforce against every other.

Sanborn v. McLean states the American doctrine. A developer of a Detroit subdivision conveyed most lots by deeds containing residential restrictions; the McLeans' lot had been conveyed without them. When the McLeans began to build a filling station in the rear of their lot, the neighbours obtained an injunction. The Michigan court reasoned that when the developer sold the first restricted lot, a reciprocal negative easement arose at once, fastening upon the lots he retained for the benefit of the lot sold; the easement attached to the McLeans' lot before it left the developer's hands, and the McLeans, whose surroundings were uniformly residential and whose abstract disclosed the pattern, were chargeable with inquiry notice.

The doctrine has four elements. First, a common grantor. Second, a plan or scheme in existence at the time the first restricted lot was conveyed; a scheme conceived later cannot bind lots already conveyed, and this temporal requirement is the doctrine's chief limitation. Third, a defined area to which the plan applies, so that the burdened and benefited parcels are ascertainable; Evans v. Pollock holds that the restricted area may be a definable portion of a larger tract rather than the whole. Fourth, notice, in one of its three forms, to the owner sought to be bound.

Evidence of a scheme is drawn from a recorded plat showing uniform lot lines and setbacks, a recorded declaration of restrictions, a substantial pattern of similarly restricted deeds, representations in sales brochures and by sales agents, and the physical uniformity of the completed development. Snow v. Van Dam supplies the classical Massachusetts analysis, holding that the scheme must be sufficiently uniform and comprehensive that purchasers reasonably understood themselves to be acquiring rights against the whole tract, and that the plan must have covered the parcel in question when the plaintiff's lot was sold.

Restatement (Third) §§ 2.11–2.14 restates the doctrine in modern form. Section 2.14 provides that a general-plan servitude is implied where the plan indicates that the burdened lot was intended to be covered, and § 2.12 supplies the criteria for inferring the plan from the developer's conduct, from a recorded plat or declaration, and from the pattern of conveyances. The Restatement treats the implied servitude as a servitude created by implication rather than as an exception to the Statute of Frauds, which is the more coherent characterization.

An affirmative covenant obliges the burdened owner to act: to maintain, to repair, to supply, to pay. English law refused to allow the burden to run, on the ground stated in Austerberry that equity will not compel a person to expend money on land merely because he bought it with notice of a promise made by his predecessor, and the rule was confirmed in Rhone v. Stephens with the observation that it is one thing to restrain a purchaser from using land inconsistently with a bargain and quite another to make him perform a positive obligation he never undertook. English practice therefore relies on the estate rentcharge, the chain of indemnity covenants, the leasehold structure, and the commonhold legislation of 2002.

American law took the opposite path, and the affirmative covenant to pay assessments is now the most economically significant servitude in the country. Neponsit sustained the assessment covenant on three grounds: that the assessment funded facilities without which the burdened lot could not be enjoyed as intended, so that the burden touched and concerned; that the covenant created an equitable lien on the lot, enforceable in rem; and that the association, though landless, could sue as the representative of the owners in whom the benefit was vested. The doctrinal edifice of the modern homeowners' association rests on those three propositions.

Modern statutes have largely superseded the common-law analysis. The Uniform Common Interest Ownership Act authorizes the declaration to impose assessments (§ 3-115), grants the association a statutory lien with priority over most encumbrances for a limited number of months of assessments (§ 3-116), and confers on the association the power to sue and be sued, to adopt rules, and to impose charges for late payment (§ 3-102). Davis–Stirling in California, chapter 720 of the Florida statutes, and chapter 209 of the Texas Property Code perform the same functions. These statutes supply what the common law could not: a standing entity, a lien remedy, a governance mechanism, and a body of procedural protection for the owner.

Judicial review of association restrictions and rules has become the central battleground. Nahrstedt v. Lakeside Village Condominium Association held that use restrictions recorded in the declaration are presumptively valid and enforceable unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of the land that substantially outweighs the benefit — a deferential standard justified by the notice every purchaser has of the recorded declaration. Rules subsequently adopted by the board, not recorded and not bargained for, receive a stricter reasonableness review. Restatement (Third) § 6.7 and § 6.13 codify a comparable two-tier standard. Chapter 24 develops this material at length.

Restrictive covenants are construed, in the classical formulation, strictly against the party seeking enforcement and in favour of the free use of land, ambiguities being resolved against the restriction. The rule has softened. Restatement (Third) § 4.1 directs that a servitude be interpreted to carry out the purpose for which it was created, and many modern courts apply ordinary principles of instrument construction, giving effect to the evident intention of the parties without a thumb on the scale. Where a covenant is part of a comprehensive scheme in which every owner has reciprocal rights, courts construe it to effectuate the scheme, since strict construction would defeat the reasonable expectations of everyone in the development.

Recurring interpretive problems include the meaning of "residential purposes" as applied to home offices, day-care, group homes for the disabled, and short-term vacation rental; the meaning of "single family" as applied to unrelated occupants; the scope of architectural-approval clauses and the standard of review of a committee's decision; and the effect of a term of years with automatic renewal unless a stated majority objects. Statutory overlays are pervasive: the Fair Housing Amendments Act requires reasonable accommodation and preempts restrictions excluding group homes for persons with disabilities, 42 U.S.C. § 3604(f)(3); many states preempt covenants prohibiting solar collectors, clotheslines, political signs, flags, xeriscaping, electric-vehicle charging, and accessory dwelling units.

The constitutional limit is absolute where race is concerned. Shelley v. Kraemer held that judicial enforcement of a racially restrictive covenant is state action denying equal protection under the Fourteenth Amendment; Barrows v. Jackson extended the holding to actions for damages against a covenantor who breached; and the Fair Housing Act and 42 U.S.C. § 1982 independently prohibit such covenants. Restatement (Third) § 3.1(1) states that a servitude is invalid if it is illegal or unconstitutional or violates public policy. Many states now provide a summary administrative procedure by which an owner may strike the offending language from the record, though the historical instrument itself is preserved for the archive; the covenants remain in millions of American chains of title as a matter of record and are wholly void as a matter of law.

The plaintiff's choice of remedy determines the elements he must prove. An action for damages is an action at law on a real covenant and requires the full complement of writing, intent, touch and concern, horizontal privity, and strict vertical privity. A suit for an injunction is a suit in equity on an equitable servitude and requires writing or a common plan, intent, touch and concern, and notice. In jurisdictions following the Restatement (Third), both remedies are available for the breach of any valid servitude, subject to equitable discretion, and the pleading distinction disappears.

Damages are measured by the diminution in the market value of the benefited land caused by the breach, or in some cases by the cost of restoring the condition the covenant required, subject to the ordinary rule against economic waste. Where the breach is continuing, successive actions lie, and courts sometimes award permanent damages representing the capitalized value of the servitude in lieu of an injunction — in substance a private condemnation. Nominal damages are available where the breach is proved but no diminution is shown, and nominal damages support a subsequent injunction by establishing the right.

The injunction is the characteristic remedy and is granted almost as of course where the covenant is valid, the breach clear, and the plaintiff free from disqualifying conduct. Rick v. West is the classical demonstration of the strength of the remedy: a single remaining lot owner in a residential subdivision, who had refused to release the restriction, obtained an injunction against the construction of a hospital on forty-five acres, the court holding that the value of her right did not depend on the number of persons who shared it and that she was entitled to insist on the bargain she had bought. Equity nonetheless retains discretion, and the injunction may be denied for laches, unclean hands, acquiescence, relative hardship, or the triviality of the violation.

Two remedial refinements deserve mention. First, the doctrine of relative hardship, sometimes called balancing the equities, permits a court to withhold the injunction and award damages where the harm to the defendant from enforcement would be greatly disproportionate to the benefit to the plaintiff — typically where a structure has been substantially completed in good faith and the violation is a minor encroachment on a setback. Second, self-help and administrative remedies predominate in practice: architectural review, fines, suspension of privileges, and the assessment lien resolve the overwhelming majority of disputes without litigation, and most modern declarations and statutes require notice, hearing, and in some states mediation or arbitration before suit.

The doctrine of changed conditions permits a court to refuse enforcement of a servitude, and under the modern rule to modify or terminate it, where changes in the character of the neighbourhood have rendered the servitude's purpose incapable of substantial achievement. The doctrine is narrow, and the cases that state it most clearly are the cases refusing to apply it.

Western Land Co. v. Truskolaski is the standard authority. A 1941 subdivision restricted to single-family residences was, by 1969, surrounded by commercial development on a heavily travelled arterial street; the developer sought to build a shopping centre on a retained parcel within the tract. The Nevada court refused, holding that the restriction retained substantial value to the interior lot owners, that the tract itself remained wholly residential, and that changes outside the subdivision — however dramatic — do not terminate a restriction so long as the original purpose can still be realized within it. El Di, Inc. v. Town of Bethany Beach illustrates the opposite result: a covenant prohibiting the sale of alcohol in a beach town was terminated where the town had become a commercial resort in which alcohol was consumed openly in every restaurant by patrons bringing their own, so that enforcement served no purpose the covenant was designed to serve.

Restatement (Third) § 7.10 states the modern rule in terms of modification rather than mere non-enforcement: when a change in conditions makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit its purpose to be accomplished, and if modification is not practicable or would not be effective, may terminate it. Compensation to the beneficiaries may be ordered as a condition of modification or termination. The Restatement's approach is superior to the all-or-nothing common-law rule because it allows the court to preserve as much of the original arrangement as circumstances permit.

Statutory analogues are widespread and often more useful than the common-law doctrine. Section 84 of the English Law of Property Act, 1925, empowers the Upper Tribunal to discharge or modify restrictions that are obsolete, that impede reasonable user, or to which the beneficiaries have agreed, with compensation. New York Real Property Actions and Proceedings Law § 1951 authorizes extinguishment of a restriction of no actual and substantial benefit. Massachusetts limits enforcement of restrictions more than thirty years old to cases in which the restriction is of actual and substantial benefit, and Florida's and other marketable-title acts extinguish restrictions not preserved by a recorded notice within the statutory period.

The equitable defences overlap in the cases and are frequently pleaded together, but they are analytically distinct and differ in scope. The essential question is always whether the defence defeats enforcement by the particular plaintiff against the particular defendant, or destroys the servitude as to the whole scheme.

• Waiver. The intentional relinquishment of a known right, ordinarily personal to the party who waives and effective only as to the violation waived.
• Acquiescence. Failure to object to a particular violation, barring enforcement against that violator, and barring enforcement of the same restriction against others only where the pattern of tolerated violations is so general that the restriction has ceased to serve its purpose.
• Abandonment. A general and substantial disregard of the restriction throughout the tract, so extensive that the scheme has been destroyed and no owner can reasonably expect its benefits. Abandonment terminates the servitude as to all; isolated or peripheral violations do not abandon. Restatement (Third) § 7.4.
• Estoppel. Conduct by the beneficiary inducing the burdened owner reasonably to rely to his detriment — typically an assurance that the restriction would not be enforced, followed by substantial expenditure. Restatement (Third) § 7.6.
• Laches. Unreasonable delay in seeking relief, causing prejudice. A plaintiff who watches a building rise for six months and sues at completion will ordinarily be confined to damages.
• Unclean hands. Violation of the same restriction by the plaintiff, denying him equitable relief while leaving his action at law intact.
• Relative hardship. Not a defence to the servitude's validity but a ground for withholding the injunction and awarding damages where enforcement would be grossly disproportionate.

The distinction between acquiescence and abandonment is worked in the cases through counting: courts examine the number, visibility, location, and character of the violations, whether they are of the same restriction sought to be enforced, and whether the overall character of the tract has changed. Toleration of six detached garages in setback areas does not abandon a single-family restriction; toleration of nine commercial establishments on a subdivision's principal street may abandon the residential character of that street while leaving the interior scheme intact — a partial abandonment courts increasingly recognize.

A servitude terminates by merger when the burdened and benefited estates come into the same ownership in the same right and in fee. Merger is rarely complete in a subdivision, because the benefit is vested in every lot owner and unity of all lots is practically impossible; a developer who reacquires two of four hundred lots extinguishes nothing. Where merger does occur, the servitude does not revive on subsequent severance and must be expressly recreated.

Release is the ordinary voluntary termination, requiring a writing executed by every person in whom the benefit is vested and recorded in the burdened lot's chain. In a common scheme this means every lot owner, and the practical impossibility of unanimity is precisely why modern declarations provide amendment procedures by supermajority vote, and why statutes supply default amendment mechanisms. Uniform Common Interest Ownership Act § 2-117 permits amendment by sixty-seven percent of the votes unless the declaration specifies a different figure, subject to protections for particular classes of provision.

A servitude may expire by its own terms, where the instrument fixes a term of years or provides for automatic renewal subject to termination by a stated majority. Condemnation of the burdened land extinguishes the servitude to the extent of the taking, and in most jurisdictions the holders of the benefit are entitled to compensation for the value of the restriction taken — a proposition on which jurisdictions divide, some treating the restriction as a compensable property interest and others as a mere contract right. Prescription may extinguish a servitude where an open, notorious, adverse, and continuous violation continues for the prescriptive period, though the doctrine is applied narrowly to negative restrictions.

Statutory termination is now the most important mode in practice. Marketable-title acts extinguish restrictions not preserved by a recorded notice within the statutory period measured from the root of title, subject to savings clauses that in some states swallow the rule. Fla. Stat. §§ 712.01–712.12. Ancient-restriction statutes limit enforcement of restrictions after a fixed period unless they confer actual and substantial benefit, Mass. Gen. Laws ch. 184, § 30, and Minn. Stat. § 500.20 terminates most restrictions after thirty years. Counsel examining title must consult the situs statute; the age of a restriction is never, without more, a ground for disregarding it.

Covenants and equitable servitudes are within the recording acts of every American jurisdiction, and an unrecorded restriction is void as against a subsequent purchaser for value without notice. The mechanics of recording therefore determine the practical durability of the restriction. Best practice records a declaration of covenants, conditions, and restrictions before the conveyance of any lot; indexes it against every lot in the tract by legal description; incorporates it by specific recording reference in every deed; and records amendments in the same manner.

The examiner's task is to identify every restriction affecting the parcel, which requires searching the grantor index against every predecessor in title for the period of each one's ownership, examining the recorded plat and any declaration referenced in it, and — in jurisdictions following Guillette v. Daly Dry Wall — examining deeds out from common grantors to other parcels in the tract. In jurisdictions following Witter v. Taggart, restrictions imposed by a deed out to another parcel are outside the chain and impart no constructive notice, but the examiner must still consider whether the physical character of the neighbourhood creates inquiry notice.

Curative practice includes obtaining releases or partial releases from benefited owners, recording an amendment adopted under the declaration's amendment clause, obtaining a declaratory judgment or quiet-title decree adjudicating the restriction unenforceable, invoking a marketable-title or ancient-restriction statute by recorded affidavit, and — for racially restrictive language — invoking the summary redaction procedures now available in many states. Title insurers ordinarily except restrictions of record from coverage and will insure against forfeiture or reversion for violation only on a satisfactory survey and estoppel from the association.

The Restatement (Third) of Property: Servitudes, approved by the American Law Institute in 2000 under the reportership of Susan F. French, is the most thorough reconstruction of a field of American property law attempted by the Institute. Its central move is definitional. A servitude is a legal device that creates a right or an obligation that runs with land, and the classical categories — easement, profit, real covenant, equitable servitude — are treated as varieties of a single institution governed by one set of rules of creation, interpretation, succession, and termination.

• Terminology. §§ 1.1–1.4 collapse the real covenant and the equitable servitude into the single category of a covenant running with land, retaining the easement and profit as the categories of rights of use and removal.
• Privity abolished. § 2.4 provides that no privity relationship is required to create a servitude, and §§ 5.1–5.9 substitute functional rules of succession for vertical privity.
• Touch and concern superseded. § 3.1 provides that a servitude is valid unless illegal, unconstitutional, or contrary to public policy, and §§ 3.4–3.7 identify the specific policies — restraints on alienation, restraints on trade, unconscionability — that the touch-and-concern requirement formerly served indirectly.
• Benefits in gross. § 2.6 permits servitude benefits to be held in gross and to be transferred, validating conservation servitudes, utility covenants, and association-held benefits.
• General plans. §§ 2.11–2.14 codify the implication of reciprocal servitudes from a general plan of development.
• Common-interest communities. Chapter 6 supplies a complete framework of association powers, member protections, and standards of review — the first Restatement treatment of the subject.
• Modification and termination. §§ 7.1–7.15 collect release, abandonment, merger, prescription, estoppel, condemnation, marketable-title extinguishment, and the changed-conditions power of § 7.10, which authorizes modification as well as termination and permits compensation.
• Remedies. §§ 8.1–8.5 make legal and equitable relief available for breach of any servitude, subject to ordinary equitable discretion.

Adoption has been uneven. Several state supreme courts have expressly embraced the abolition of touch and concern or of horizontal privity; others cite the Restatement for interpretive propositions while retaining the classical elements; a few have declined it as a legislative rather than judicial reform. The practical consequence is that counsel must plead in the alternative, satisfying both the classical elements and the Restatement's validity standard, and must draft as though the strictest rule applies.

Legislation has moved faster than case law. The Uniform Common Interest Ownership Act and its predecessors govern the creation and operation of condominiums and planned communities in a majority of states; the Uniform Conservation Easement Act, adopted in most states, dispenses with touch and concern, privity, and the requirement of a benefited parcel for conservation servitudes; marketable-title and ancient-restriction acts impose temporal limits; and preemption statutes disable covenants restricting solar collectors, political expression, group homes, accessory dwellings, and manufactured housing. The modern law of promissory servitudes is therefore statutory at its centre and common-law only at its margins.

The five private land-use devices examined in Part VII may be compared directly. The table states the classical common-law position; the Restatement (Third) unifies the first four into a single law of servitudes and would answer several of the rows differently.

Comparative systems avoid the Anglo-American difficulty by structural means. German law recognizes the Grunddienstbarkeit for negative and use servitudes and the Reallast for recurring affirmative burdens, both entered in the Grundbuch, so that the register rather than the doctrine of notice determines enforceability; the numerus clausus limits the permissible forms and the register makes them discoverable. French law relies on servitudes réelles under articles 637 to 710 of the Code civil and hesitates over affirmative obligations, resolving common-ownership problems through the statutory copropriété regime rather than through private covenant. English law, having refused to let positive burdens run, achieved the same result through leasehold, the estate rentcharge, and finally the Commonhold and Leasehold Reform Act, 2002. In each system the functional demand — enforceable, discoverable, long-term private land-use planning — is met; the American solution is distinctive in meeting it through judge-made servitude doctrine supplemented by recording.

1. "A real covenant and an equitable servitude are two different promises." They are ordinarily one promise viewed through two remedial lenses. The elements differ because the forums differed, not because the transactions differ.
2. "If the covenant does not run at law, it is unenforceable against successors." It remains enforceable in equity against anyone taking with notice, which in practice means almost every purchaser.
3. "Tulk v. Moxhay held that contracts bind purchasers with notice." The early reasoning suggested as much, but the doctrine was confined within a generation: the plaintiff must hold benefited land, and (in England) the covenant must be negative.
4. "The words 'heirs and assigns' are required." They are strong evidence of intent, not a formal requisite. Restatement (Third) § 2.2 permits intent to be shown by circumstances and purpose.
5. "Horizontal privity means the parties are neighbours." It means a relationship respecting the land independent of the covenant — almost always grantor and grantee in the deed containing it. Neighbours who covenant by separate agreement have none.
6. "A tenant cannot be bound by a covenant made by his landlord's predecessor." He is not in strict vertical privity and so is not liable in damages on the real covenant, but he is bound in equity if he took with notice.
7. "Affirmative covenants never run." True in England; false in the United States, where the assessment covenant sustained in Neponsit is the financial foundation of every homeowners' association.
8. "A restriction omitted from a deed cannot bind that lot." Where a common plan existed at the first conveyance and the purchaser had notice, reciprocal servitudes may be implied. Sanborn v. McLean.
9. "Commercial development around a subdivision terminates its restrictions." Change outside the tract is generally irrelevant while the interior retains its restricted character. Western Land Co. v. Truskolaski.
10. "One tolerated violation waives the restriction for everyone." Acquiescence bars enforcement against the violator; abandonment requires general and substantial disregard of the same restriction throughout the tract.
11. "A single objecting owner cannot stop a development." He can. Rick v. West enjoined a hospital on forty-five acres at the suit of one lot owner who declined to sell her right.
12. "Old restrictions expire automatically." Only under a statute. Marketable-title and ancient-restriction acts do the work, and their savings clauses frequently preserve what they appear to extinguish.
13. "Racially restrictive covenants are merely unenforceable formalities to be ignored." They are void, their enforcement is unconstitutional, and their attempted enforcement violates federal statute; many states now provide a procedure for striking the language from the indexed record.
14. "Merger extinguishes subdivision restrictions when the developer reacquires lots." Only unity of all benefited and burdened parcels in the same ownership and right will do, which in a subdivision is practically unattainable.
15. "The Restatement (Third) is the law." It is persuasive secondary authority. Its abolition of privity and of touch and concern binds no court that has not adopted it, and counsel must satisfy the classical elements wherever they survive.

A real covenant is a promise respecting the use of land enforceable at law against successors by an action for damages; an equitable servitude is the same promise enforced in equity by injunction against anyone who takes the burdened land with notice. The doctrines are not two transactions but two remedial regimes, and their separate elements are the residue of the historical division between the common-law courts and the Court of Chancery. Spencer's Case in 1583 fixed intent and touch and concern and, through its leasehold setting, generated the requirement of privity; Keppell v. Bailey in 1834 concluded that no covenant between freeholders could run at law; and Tulk v. Moxhay in 1848 supplied the equitable answer that a purchaser with notice may not use land inconsistently with his vendor's bargain.

For the burden to run at law the covenant must be in writing, must be intended to run, must touch and concern the land, and must be supported by horizontal privity between the original parties and strict vertical privity between the covenantor and the defendant. The benefit runs on easier terms, requiring no horizontal privity and only relaxed vertical privity. Equity dispenses with privity altogether and substitutes notice — actual, constructive, or inquiry — so that a lessee, a life tenant, or an adverse possessor may be bound where a defendant in damages could not be. A bona fide purchaser for value without notice takes free.

Where a developer manifests a general plan for a defined tract before the first conveyance, reciprocal negative servitudes may be implied against lots conveyed without express restriction, and every owner within the scheme may enforce against every other. That doctrine, together with the American willingness to let the burden of affirmative covenants run, made the restricted subdivision possible, and the assessment covenant sustained in Neponsit made the homeowners' association possible. Restrictions are construed to effectuate their purpose, are subject to pervasive statutory preemption, and are absolutely void where they discriminate by race.

Enforcement is by damages, by injunction, or by both. The injunction issues almost as of course upon a clear breach, subject to equity's discretion to withhold it for laches, unclean hands, acquiescence, triviality, or gross relative hardship. Servitudes are modified or terminated by changed conditions where the original purpose can no longer be substantially achieved, and by release, merger, expiration, abandonment, prescription, estoppel, condemnation, and an increasingly important body of marketable-title and ancient-restriction legislation. Recording governs everything: the restriction that is not discoverable is not durable.

The Restatement (Third) of Property: Servitudes unified the field in 2000, abolishing privity, superseding touch and concern with a direct public-policy test of validity, permitting benefits in gross, codifying general-plan implication, and making the full range of remedies available for any servitude. Adoption is partial, and the practitioner must know both the classical elements and the modern framework.

Chapters 21, 22, and 23 have now established the three foundational private servitudes: the right to use, the right to take, and the promise respecting use. Chapter 24 turns to their institutional application. In the condominium, the planned community, the cooperative, and the homeowners' association, easements over common areas, profits in shared resources, affirmative covenants to pay assessments, and restrictive covenants governing conduct operate together as a single integrated system of private land-use governance, administered by a corporate body with power to legislate, to tax, and to enforce. The doctrines examined in this Part are the raw materials; the common-interest community is what has been built from them.

• Restatement (Third) of Property: Servitudes §§ 1.1–1.4, 2.1–2.14, 3.1–3.7, 4.1–4.10, 5.1–5.9, 7.1–7.15, 8.1–8.5 (Am. L. Inst. 2000).
• Restatement (First) of Property §§ 530–555 (1944) — the classical statement of real covenants.
• Charles E. Clark, Real Covenants and Other Interests Which "Run with Land" (2d ed. 1947).
• Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261 (1982).
• Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. Cal. L. Rev. 1177 (1982).
• Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. Cal. L. Rev. 1353 (1982).
• Lawrence Berger, A Policy Analysis of Promises Respecting the Use of Land, 55 Minn. L. Rev. 167 (1970).
• 9 Powell on Real Property §§ 60.01–60.11 (Michael Allan Wolf ed.).
• 2 Herbert Thorndike Tiffany, The Law of Real Property §§ 848–866 (3d ed. 1939).
• Gerald Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes (2d ed. 2004).
• A. W. B. Simpson, A History of the Land Law 116–120, 256–260 (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History chs. 6, 17 (5th ed. 2019).
• Uniform Common Interest Ownership Act (Unif. L. Comm'n 1982, as amended 2008).