The Doctrine of Privity of Estate in Connection with Real Covenants

Abstract

It is generally stated as a fundamental requirement of a real covenant or covenant running with the that there must exist of estate.'1 An examination of the nature of such a requirement-a problem which has troubled many of the great legal scholars2has much of interest to the legal student not merely because the authorities are confusion and discord but especially because it is apparent that here the courts defining an expression of some degree of antiquity the law are powerfully influenced by modern and diverse views of public policy towards encumbrances on real titles. In certain jurisdictions a policy against such encumbrances is so strongly felt that except as to covenants leases the obligations of all covenants are general unenforceable except against the original covenantors. In the majority of jurisdictions this country, however, covenants may run with the land, but only if there exists privity of as defined by the local law. As we shall see, the basic element of this requirement is what distinguishes a real covenant-a covenant so connected with realty that either the right to enforce or the duty to perform passes to assigns of the land-from an interest in the land of another such as an easement or profit.3 An easement is, theory, considered as if attached to the land itself so as to pass with it4 even favor of or against disseisors; while a real covenant passes only to successors to the estate-privies estate-of either of the original contracting parties. The basis of transfer of an easement interest is the taking of the land; the basis of transfer of a real covenant is succession to a particular the land. Hence of estate is a means of explaining and justifying the transfer of certain legal benefits and obligations.