Covenant (law)

A covenant, in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law, a covenant was distinguished from an ordinary contract by the presence of a seal.^[1] Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration.^[2] In United States contract law, an implied covenant of good faith is presumed.

For restrictive covenants in contract law, see Non-compete clause.

A covenant is an agreement like a contract. A covenantor makes a promise to a covenantee to perform an action (affirmative covenant in the United States or positive covenant in England and Wales) or to refrain from an action (negative covenant). In real property law, the term real covenants means that conditions are tied to the ownership or use of land. A "covenant running with the land", meeting tests of wording and circumstances laid down in precedent, imposes duties or restrictions upon the use of that land regardless of the owner. Restrictive covenants are somewhat similar to easements and equitable servitude.^[3] In the US, the Restatement (Third) of Property takes steps to merge the concepts as servitudes.^[4] Real covenant law in the US has been referred to as an "unspeakable quagmire" by one court.^[5]

A covenant for title that comes with a deed or title to the property assures the purchaser that the grantor has the ownership rights that the deed purports to convey.^[6] Non-compete clauses in relation to contract law are also called restrictive covenants.

Landlords may seek and courts may grant forfeiture of leases such as in leasehold estates for breach of covenant, which in most jurisdictions must be relatively severe breaches; however, the covenant to pay rent is one of the more fundamental covenants. The forfeiture of a private home involves interference with social and economic human rights. In the case of leases commuted to a large sum payable at the outset (a premium), that has prompted lobbying for and government measures of leasehold reform particularly in the law of ground rents and service charges.

The covenant must be in writing to satisfy the .

Statute of Frauds

The original parties to the agreement must have intended that successors be bound by the agreement.

A subsequent owner must have had , inquiry notice, or constructive notice (record) of the covenant at the time of purchase.

actual notice

The covenant must touch or concern the land. The covenant must relate to the use or enjoyment of the land.

landlord

estate in land

Private transfer fee

Richard R.W. Brooks and , Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms. Cambridge, MA: Harvard University Press, 2013.

Carol M. Rose

Jeffrey D. Gonda, Unjust Deeds: The Restrictive Covenant Cases and the Making of the Civil Rights Movement. Chapel Hill, NC: North Carolina Press, 2015.

Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases. Berkeley, CA: University of California Press, 1967.

(1911). "Covenant" . In Chisholm, Hugh (ed.). Encyclopædia Britannica. Vol. 7 (11th ed.). Cambridge University Press. p. 339.