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Real Property – Nutshell Examples - page 16 / 22





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remedy. (233)

Contract Assignment and Assumption

Ex:Prudence covenant that she would not use her land to compete with Peter’s business.  Peter then sold his land and business to Ann.  If the benefit of this covenant does not run with the land, the benefit is transferred to Ann only if Peter assigns it to her.  If the benefit of the covenant does run with the land, it is transferred to Ann along with the property without the need for any assignment.  (233)

Ex:Prudence agreed to water Peter’s lawn every day.  Prudence then sold her property to Ann.  If the burden of this covenant does not run with the land, Ann must water Peter’s lawn only if she “assumed” the covenant.  (Ann hereby assumes the obligation of the covenant.)  If the burden of the covenant does run with the land, Ann is bound even if she did not assume it. (234)

Requirements for a Covenant to Run with the Land

Ex:Prudence covenanted to build and maintain a fence between Peter’s and her lots.  Since the fence does not yet exist, this covenant would not run under Spencer’s case unless Prudence expressly stated in the covenant that she covenanted for herself and her assigns.  However, if the fence already existed and the covenant only concerned maintenance, any language indicating an intent that the covenant burden her successors would be insufficient. (235)

Burden v. Benefit

Ex:Prudence covenanted with Peter that she would not sell liquor on her land.  She made this promise because Peter has moral objections to alcohol.  The covenant’s burden touches Prudence’s land, because it deprives her of a use that otherwise would be available to her.  But the covenant’s benefit does not necessarily touch land.  (237)

Ex:Prudence covenanted to water Peter’s lawn every day.  The covenant touches Peter’s land because it benefits the land, rather than Peter himself.  The

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