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only person interested in having the covenant enforced is the owner of the lawn.  But the covenant’s burden does not touch Prudence’s land, since Prudence can perform this covenant regardless of whether she owns any property. (237)

Touching v. Running

Requirement for the Burden to Run

Ex:Covenant not to Compete: Prudence promised not

to sell liquor on her land in competition with Peter’s tavern.  Courts in many states hold that the covenant’s benefit does not touch and concern land since it does not increase Peter’s physical enjoyment of his land, but only the amount of money that he can make on it.  However, the burden clearly touches and concerns Prudence’s land, since it restricts her use of it.  Thus, this may be characterized as a burden that touches and concerns the land but as a benefit that does not.  Under the more liberal view, the burden may run.  Under the second view it may not. (238)

Ex:Covenant to Insure: Prudence promised to pay to keep Peter’s premises insured.  Many courts hold that the burden of Prudence’s covenant runs only if Peter is obligated to use the proceeds to repair the premises.  Such a requirement converts Prudence’s promise to pay $ into a promise to pay for or make repairs, which obviously benefits land.

Requirement for the Benefit to Run

Ex:Prudence covenanted to water a tree on Peter’s

property.  This benefit touches and concerns Peter’s property.  Therefore, it should run to and be enforceable by future owners of Peter’s property, even though the covenant’s burden does not affect any land owned by Prudence.  (239)

Ex:Prudence covenanted with Peter not to engage in any competing business on her land.  In some states, the benefit of such a covenant is considered not to touch land and will not run with Peter’s land.  A benefit never runs if it does not touch and concern the land.  (239)

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