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Covenants Running with Interests in Land held under Landlord-Tenant Relationships

Either L or T (or both) may assign or (in the case of the T) sublet their interests to successors.Consider who has the burden and who has the benefit of the following covenants..... LandlordTenant. . Tenant shall paint the premises every five years.". . T2. (Benefit). (Burden). . L2. Landlor

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Covenants Running with Interests in Land held under Landlord-Tenant Relationships

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    1. Covenants Running with Interests in Land held under Landlord-Tenant Relationships

    7. Lease clause: T shall not build any structure higher than two stories on the leased premises. L assigns Ls rents and reversion interests to a new landlord. T builds a building higher than two stories. Who can enforce the covenant against T?

    8. Now its time to talk about covenants running with land. This means that someone who wasnt a party to the original covenant might be (1) liable on it, or (2) able to enforce it.

    9. Both landlords and tenants might transfer their interests. Are their successors... Able (as plaintiff) to enforce the covenants made by the original party? (Does the benefit run?) Liable (as defendant) for performance of the covenants made by the original party? (Does the burden run?)

    10. How can a plaintiff have a benefitted interest in land?

    11. How can a defendant have a burdened interest in land?

    12. Despite the conventional terminology, covenants dont run with land! Thats too vague. Instead...

    13. What happens if the burden or benefit runs?

    14. To have a successful action on a covenant we must have both:

    15. Which aspect (burden or benefit) must be shown to run with what interest in the land ....

    16. Three tests which must be met for a covenants burden or benefit to run with an interest in land:

    17. Definitions of privity of estate:

    18. Definitions of privity of estate:

    20. After an Assignment

    21. After a Sublease

    22. Lets consider the tenants covenant to pay rent...

    23. After an assignment, who is liable to L for rent?

    25. After a sublease, who is liable to L for rent?

    27. Some questions about this transaction: What is the covenant in dispute? Who had the original benefit and burden of it? What aspect is now alleged to run to Continental?

    28. Did Continental...

    29. Tests of touch and concern:

    30. Is T1 discharged if...

    32. In a landlord-tenant relationship, are the burdened parties still burdened after they assign their interests? If T1 assigns to T2, does T1 remain liable for breaches of tenant covenants by T2? Yes, definitely. If L1 assigns to L2, does L1 remain liable for breaches of landlord covenants by L2? Probably so, but cases are inconsistent.

    33. In a landlord-tenant relationship, do benefitted parties still have the benefit of covenants after they assign their interests?

    34. Summary:

    35. On fee simple land, former owners no longer even have burdens!

    36. Now some issues with touching and concerning the land.

    37. Holmes, J., in Norcross v. James (Mass. 1885)

    38. Do these covenants touch and concern?

    39. Implicit in Holmes opinion is the idea that...

    40. The same principle (touch and concern) applies to the running of benefits.

    43. The covenant by T to insure: Forest Land did not assume the covenant. Did the covenant touch and concern the land? Why not? Could the covenant T&C if it were reworded?

    44. Would the covenant touch and concern if...

    47. Gerber (L) sues Pecht (T1) for rent. Is Pecht still liable for rent after assigning? Why? Is T2 (Moskowitz) also personally liable for the rent? Why? How about T3 (Christensens)? Must L attempt to recover first from T1 (Pecht) or T2 (Moskowitz)?

    48. Why is T3 liable?

    49. How can Pecht get off the hook?

    50. Since T1 is a surety...

    51. Heres a short review of what weve learned about liability after a tenants assignment.

    52. Is T2 liable for covenants in the lease?

    53. If T2 reassigns:

    54. If T3 is primarily liable...

    55. Summary: A tenant can be personally liable on either of two theories:

    56. Which is better for the landlord?

    58. Lets analyze the covenant Who had the benefit? Who had the burden? What interest in what land was benefitted? Is there now any practical harm to that interest from a violation of the covenant? Should the court enjoin the violation?

    59. Should burdens run with subleases in equity even though theres no vertical privity?

    60. Can a subtenant enforce:

    61. Assume T1 assigns in return for T2's promise to pay all the rent directly to L, and in addition, to pay T1 $200 per month.

    63. The end

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