North carolina general warranty deed pdf “covenant running with the land”, also imposes duties or restrictions upon the use of that land regardless of the owner. Real covenant law in the United States has been referred to as an “unspeakable quagmire” by one court. United States are also called restrictive covenants.
United States such covenants are examined more closely, but with exceptions affirmative covenants have been permitted to run with the land. 1986, a symposium discussed whether the law of easements, equitable servitudes, and real covenants should be unified. As time passes and the original promisee of the covenant is no longer involved in the land, enforcement may become lax. Historically, particularly in the United States exclusionary covenants were used to exclude racial minorities. Covenants may restrict everything from the height and size of buildings to the materials used in construction to superficial matters such as paint color and holiday decorations. FCC declined to extend this preemption. Some US states have enacted legislation requiring homeowners’ associations to provide reasonable accommodations for amateur radio antennas under the rationale that amateur radio provides public service communications in the event of an emergency, major disaster, or special event.
In Canada, governmental authorities may use restrictive covenants as well as zoning. The original parties to the agreement must have intended that successors be bound by the agreement. The covenant must touch or concern the land. The covenant must relate to the use or enjoyment of the land. There must be horizontal privity between the original parties. Vertical privity characterizes the relationship between the original party to the covenant and the subsequent owner.
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Note that because strict vertical privity is required for a burden to run, a lessee could not have a burden enforced against them. Courts interpret covenants relatively strictly and give the words of the agreement their ordinary meaning. Generally if there is any unclear or ambiguous language regarding the existence of a covenant courts will favor free alienation of the property. A covenant can be terminated if the original purpose of the covenant is lost. The covenant may be negative or affirmative.
A negative covenant is one in which property owners are unable to perform a specific activity, such as block a scenic view. An affirmative covenant is one in which property owners must actively perform a specific activity, such as keeping the lawn tidy or paying homeowner’s association dues for the upkeep of the surrounding area. An agreement not to open a competing business on adjacent property is generally enforceable as a covenant running with the land. The benefited land must be identifiable. Ch 169, a covenant requiring the upkeep of roads was found to bind the successor in title to the original covenantor because he had elected to take the benefit. A positive burden can run in law, but not in equity. For example, a restrictive covenant to contribute to the maintenance costs of a common area will not be binding if the covenantor’s successors in title have no legal right to use them.