⚡ 10-Second Rule
A written land promise can bind later owners for money, but only if strict old requirements are met.
🧒 ELI-10 Scene
Mia signs up for plot 12 at the community garden. The sign-up sheet has a rule: no sunflowers taller than the fence. Every gardener signed that same sheet when the garden first opened. Later, Mia hands plot 12 over to her cousin Dev. Dev read the rulebook before taking the plot. So the rule was never just Mia's personal promise. It came stapled to plot 12 itself. If Dev's sunflowers shade the tomatoes, the garden can bill him for the lost crop.
⚖️ Actual Rule
A real covenant is a promise concerning land whose burden or benefit runs to successors at law, supporting an action for damages. Under the traditional majority rule, the burden runs only if: (1) the promise is in a writing satisfying the Statute of Frauds; (2) the original parties intended to bind successors (words such as "heirs and assigns"); (3) the promise touches and concerns the land — it affects the parties' use or enjoyment of their parcels; (4) horizontal privity existed — the original parties shared a mutual or successive interest in the land, most commonly because the covenant appeared in a conveyance between them; (5) vertical privity exists — the successor took the promisor's entire estate; and (6) the successor had notice (actual, record, or inquiry), since the recording acts shield a bona fide purchaser from an unrecorded burden. The benefit runs with a lighter showing: writing, intent, touch and concern, and relaxed vertical privity (any succeeding possessory interest); horizontal privity is not required. The Restatement (Third) of Property (Servitudes) § 2.4 abandons the horizontal-privity requirement entirely, but the traditional elements remain the majority rule tested on the bar (paraphrased). [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: the money remedy follows the land only when the promise checks every old box.
🔍 Ask These Questions
- Is the promise in a writing? (Was the deal actually written down and signed, not just spoken over the fence?)
- Did the original parties intend successors to be bound? (Did they say the promise covers future owners, like "heirs and assigns"?)
- Does it touch and concern the land? (Is the promise about using the dirt itself, not some personal favor?)
- Is the plaintiff enforcing the burden or the benefit? (Suing the promise-breaker's successor is the burden side — the hard side.)
- For the burden, was there horizontal privity at creation? (Was the promise born inside a land sale between the original two?)
- Is there vertical privity — and did the successor have notice? (Did the new owner take the whole estate and know the rule?)
- Is the remedy sought damages? (Money means this doctrine; a stop-it order means the equitable-servitude lesson instead.)
⚠️ Bar Trap
Exam language: Examiners signal the doctrine through the remedy: a plaintiff seeking money damages triggers the strict real-covenant elements, including horizontal privity for the burden, while a request for an injunction requires only the equitable-servitude elements. The classic trap is a freestanding agreement between two existing neighbors — no horizontal privity — whose burden therefore cannot run at law even against a successor who took with full notice.
ELI-10: Look at what the plaintiff wants. Money means the hard checklist. A stop-it order means the easier checklist. Two neighbors' side deal flunks the hard checklist even when everyone knew the rule.
🧪 Question
Twenty years ago, the owners of two adjacent commercial lots signed and recorded an agreement providing that neither lot would ever be used as a bakery, and reciting that the restriction bound their respective heirs and assigns. Neither owner conveyed any interest in land to the other at that time or afterward. Five years ago, one of the owners sold her lot in fee simple to a purchaser whose title search disclosed the recorded agreement. The purchaser recently opened a bakery on the lot. The neighboring original owner, who still owns his lot, has sued the purchaser for damages. There is no other applicable statute.
Under the traditional majority approach, is the purchaser liable in damages?
(A) Yes, because the agreement was recorded and the purchaser took with notice of it. (B) Yes, because a restriction on the use of land touches and concerns the land. (C) No, because the original parties were not in horizontal privity when the agreement was made. (D) No, because a restriction against a particular business use cannot touch and concern land.
Answer: (C). The neighbors executed a freestanding agreement unaccompanied by any conveyance between them, so horizontal privity never existed. Without it, the burden cannot run at law, and the damages action against the successor fails — though an injunction under equitable-servitude principles would remain available.
💡 Why the Wrong Answers Are Wrong
- (A) treats recording and notice as sufficient; notice is one element, but it cannot substitute for the missing horizontal privity.
- (B) identifies a satisfied element and stops; touch and concern alone does not carry the burden past the privity requirement.
- (D) is backwards; restrictions on how land may be used are the paradigm of promises that touch and concern land.
- ELI-10: The misconception is grabbing one checked box and declaring victory. The money remedy needs every box checked, and privity was empty.
