Duhaime's Law Dictionary


Covenant Definition:

A written document in which signatories either commit themselves to do a certain thing, to not do a certain thing or in which they agree on a certain set of facts.

Related Terms: Restrictive Covenant, Quiet Enjoyment

In Wein II, Justice Beasley of the Court of Appeals of North Carolina adopted these words:

"The word covenant means a binding agreement or compact benefiting both covenanting parties.

"Covenants accompanying the purchase of real property are contracts which create private incorporeal rights, meaning non-possessory rights held by the seller, a third-party, or a group of people, to use or limit the use of the purchased property.

"Judicial enforcement of a covenant will occur as it would in an action for enforcement of `any other valid contractual relationship."

The person extending a covenant is called a covenantor and the receiver, a covenantee.

They are very common in real property dealings and are used to restrict land use such as amongst shopping mall tenants or for the purpose of preserving heritage property.

For example, a covenantor to a mortgage commits himself to pay the mortgage if the mortgagor defaults. A person buying a property may find that there is a covenant prohibiting dog ownership on title.

In Patch, Justice Burgess of the Supreme Court of Vermont made the very useful distinction as follows:

"Covenants are agreements or promises of two or more parties that something is done, will be done, or will not be done, and are characterized by the type of burden they impose: an affirmative covenant calls for the covenanter to perform an act, while a negative covenant requires the covenanter to refrain from performing one.

"Negative covenants that limit the uses that can be made by the owner or occupier of land are also called restrictive covenants."

Covenants that run with ownership of land or real property are a species of restrictive covenants.

REFERENCES:

  • Patch v Springfield School District, 989 A. 2d 500; also at 2009 VT 117.
  • Wein II, LLC v. Porter, 683 SE 2d 707 (2009)

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