Covenant (law)

A covenant, in its most general sense and historical sense, is a solemnly promise to engage in or refrain from a specified action. Under historical English common law a covenant was distinguished from an ordinary contract by the presence of a seal. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration. In United States contract law, an implied covenant of good faith is presumed.

A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do (affirmative covenant) or not do some action (negative covenant). In real property law, the term real covenants is used for conditions tied to the use of land. A "covenant running with the land", also imposes duties or restrictions upon the use of that land regardless of the owner. Restrictive covenants are somewhat similar to easements and equitable servitudes, leading to some discussion about whether these concepts should be unified; the Restatement (Third) of Property takes steps to merge these concepts as servitudes. Real covenant law in the United States has been referred to as an "unspeakable quagmire" by one court.

Covenants for title are covenants which come with a deed or title to the property, in which the grantor of the title makes certain guarantees to the grantee.Non-compete clauses in the United States are also called restrictive covenants.

In property law, land-related covenants are called "real covenants" and are a major form of covenant, typically imposing restrictions on how the land may be used (negative covenants) or requiring a certain continuing action (affirmative covenant). These may also "run with the land" (called a covenant appurtenant), meaning that any future owners of the land must abide by the terms, or may apply to a particular person (called a covenant in gross). Under English law, affirmative covenants typically do not run with the land; in the United States such covenants are examined more closely, but with exceptions affirmative covenants have been permitted to run with the land.

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