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Real Property – Nutshell Examples - page 18 / 22

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Privity is Necessary for the Burden to Run

Vertical Privity as a requirement for Burden to Run

Ex:Peter conveyed fee title to land to Prudence.  The deed included a covenant that Prudence would not erect any structure over 30 feet high.  Prudence then rented her property to Tom.  At law, the covenant’s burden does not bind Tom because he has not acquired Prudence’s entire estate.  (242)

Ex:Peter covenanted land to Prudence.  The deed included a covenant that Prudence would not erect any structures over 30 feet high.  Prudence then conveyed the same land to Ann.  The covenant’s burden binds Ann because she acquired Prudence’s entire FS estate. (242)

Ex:Peter conveyed 2 acres on land to Prudence.  The deed included a covenant that Prudence would not erect any structures over 30 feet high.  Prudence then sold one acre to Ann.  The burden binds Ann, because she acquired Prudence’s entire estate (FS) in a part of the property.  The physical division of land is not a division of the estate. (242)

Ex:Prudence covenanted in a lease with her landlord that she would keep the premises in repair.  Prudence assigned the lease to Ann.  Ann is bound, since the assignment transfers Prudence’s entire leasehold estate to Ann. (242)

Ex:Prudence covenanted in a lease with her landlord that she would keep the premises in repair.  Prudence sublet the premises to Stan.  Stan is not bound at law, since a subtenant does not succeed to the tenant’s entire estate. (242)

Privity is NOT required for the Benefit to Run

Ex:Prudence and Peter are neighbors who agree that Prudence will not erect any structure on her land over 30 feet high.  B/C they are not in privity of estate, the burden of this covenant may not run at law to bind Prudence’s successors, but that the benefit may run to Peter’s successors.  Therefore, Prudence may be bound by the covenant even after Peter transfers his land, but her successors in

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