Covenant in United States

Covenant Definition

(Lat. convenire, to come together; conventio, a coming together). It is equivalent to the factum conventum of the civil law. In Contracts. An agreement between two or more persons, entered into by deed, whereby one of the parties promises the performance or nonperformance of certain acts, or that a given state of things does or shall, or does not or shall not, exist. It differs from an express assumpsit in that it must be by deed. Covenants are classified on several lines of division, the principal ones being: Affirmative or negative.
(1) Affirmative covenants are those in which the covenantor declares that something has been already done, or shall be done in the future. Such covenants do not operate to deprive covenantees of rights enjoyed independently of the covenants. Dyer, 19b; 1 Leon. 251.
(2) Negative covenants are those in which the party obligates himself not to do or perform some act. Courts are unwilling to construe a negative covenant a condition precedent, inasmuch as it cannot be said to be performed till a breach becomes impossible. 2 Wm. Saund. 156; 1 Mod. 64; 2 Keb. 674; 1 Sid. 87. Inherent or collateral.
(3) Inherent covenants are those which relate directly to the land itself, or matter granted. Shep. Touch. 161. Distinguished from collateral covenants. If real, they run with the land. Piatt, Cov. 66.
(4) Collateral covenants are those which are entered into in connection with the grant of something, but which do not relate immediately to the thing granted; as, to pay a sum of money in gross, that the lessor shall distrain for rent on some other land than that which is demised, to build a house on the land of some third person, or the like. Piatt, Gov. 69; Shep. Touch. 161; 4 Burrows, 2439; 3 Term R. 393; 2 J. B. Moore, 164; 5 Barn. & Aid. 7; 2 Wils. 27; 1 Ves. Jr. 56. Dependent, concurrent, and independent.
(5) Dependent covenants are those in which the obligation to perform one is made to depend upon the performance of the other. Covenants may be so connected that the right to insist upon the performance of one of them depends upon a prior performance on the part of the party seeking enforcement. Piatt, Cov. 71; 2 Selw. N. P. 443; Steph. N. P. 1071; 1 C. B. (N. S.) 646; 6 Cow. (N. Y.) 296; 2 Johns. (N. Y.) 209; 2 Watts & S. (Pa.) 227; 8 Serg. & R. (Pa.) 268; 4 Conn. 3; 24 Conn. 624; 11 Vt. fi49; 17 Me. 232; 3 Ark. 581; 1 Blackf. (Ind.) 175; 6 Ala. 60; 3 Ala. (N. S.) 330.
(6) Concurrent covenants are those which are to be performed at the same time. When one party is ready and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. Piatt, Cov. 71; 2 Selw. N. P. 443; Doug. 698; 18 Eng. Law & Eq. 81; 4 Wash. C. C. (U.S.) 714; 16 Mo. 450.
(7) Independent covenants are those the necessity of whose performance is determined entirely by the requirements of the covenant itself, without regard to other covenants between the parties relative to the same subject-matter or transactions or series of transactions. Covenants are generally construed to be independent (Piatt, Cov. 71; 2 Johns, [N. Y.] 145; 10 Johns. [N. Y.I 204; 21 Pick. [Mass.] 438; 1 Ld. Raym. 666; 3 Bing. [N. S.] 355) ; unless the undertaking on one side is in terms a condition to the stipulation of the other, and then only consistently with the intention of the parties (3 Maule & S. 308; 10 East, 295, 530) ; or unless dependency results from the nature of the acts to be done, and the order in which they must necessarily precede and follow each other in the progress of performance (Willes, 496) ; or unless the nonperformance on one side goes to the entire substance of the contract, and to the whole consideration (1 Seld. [N. Y.] 247). If once independent, they remain so. 19 Barb. (N. Y.) 416. Executed or executory.
(8) Executed covenants are those which relate to acts already performed. Shep. Touch. 161.
(9) Executory covenants are those whose performance is to be future. Shep. Touch. 161. Express or implied.
(10) Express covenants are those which are created by the express words of the parties to the deed declaratory of their intention. Piatt, Cov. 25. The formal word “covenant” is not indispensably requisite for the creation of an express covenant. 2 Mod. 268; 3 Keb. 848; 1 Leon. 324; 1 Bing. 433; 8 J. B. Moore, 546; 12 East, 182, note; 16 East, 352; 1 Bibb (Ky.) 379; 2 Bibb (Ky.) 614; 3 Johns. (N. Y.) 44; 5 Cow. (N. Y.) 170; 4 Conn. 508; 1 Har. (Del.) 233. The words “I oblige,” “1 agree” (1 Ves. Jr. 516; 2 Mod. 266), “I bind myself” (Hardr. 178; 3 Leon. 119), have been held to be words of covenant, as are the words of a bond (1 Chanc. Cas. 194). Any words showing the intent of the parties to do or not to do a certain thing raise an express covenant (13 N. H. 513) ; but words importing merely an order or direction that other persons should pay a sum of money are not a covenant (6 J. B. Moore, 202, note [a]).
(11) Implied covenants are those which arise by intendment and construction of law from the use of certain words in some kinds of contracts. Bac. Abr. “Covenant” (B) ; Rawle, Cov. 364; 1 C. B. 402. Thus, in a conveyance of lands in fee, the words “grant, bargain, and sell” imply certain covenants (see 4 Kent, Comm. 473), and the word “give” implies a covenant of warranty during the life of the feoffor (10 Cush. [Mass.] 134; 4 Gray [Mass.] 468; 2 Gaines [N. Y.] 193; 9 N. H. 222; 7 Ohio, pt. 2, p. 63) ; and in a lease the use of the words “grant and demise” (Go. Litt. 384; 4 Wend. [N. Y.] 502; 8 Cow. [N. Y.] 36), “grant” (Freem. Gh. 367; Cro. Eliz. 214; 4 Taunt. 609; 1 Per. & D. 360), “demise” (4 Coke, 80; 10 Mod. 162; Hob. 12; 9 N. H. 222; 15 N. Y. 327), “demisement” (1 Show. 79; 1 Salk. 137), raises an implied covenant on the part of the lessor, as do “yielding and paying” (9 Vt. 151) on the part of the lessee. In regard to the covenants arising to each grantee by implication on sale of an estate with conditions, in parcels to several grantees, see 23 Barb. (N. Y.) 153. Obligatory or declaratory.
(12) Obligatory covenants are those which are binding on the party himself. 1 Sid. 27; 1 Keb. 337.
(13) Declaratory covenants are those which serve to limit or direct uses. 1 Sid. 27; 1 Hob. 224. Principal or auxiliary.
(14) Principal covenants are those which relate directly to the principal matter of the contract entered into between the parties. They are distinguished from auxiliary.
(15) Auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it. Those the scope of whose operation is in aid or support of the principal covenant. If the principal covenant is void, the auxiliary is discharged. Anstr. 256; Prec. Chanc. 475, Transitive or intransitive.
(16) Transitive covenants are those personal covenants the duty of.performing which passes over to the representatives of the covenantor.
(17) Intransitive covenants are those the duty of performing which is limited to the covenantee himself, and does not pass over to his representative.
(18) Disjunctive or alternative covenants are those which are for the performance of one or more of several things, at the election of the covenantor or covenantee, as the case may be. Piatt, Gov. 21; 1 Duer (N. Y.) 209.
(19) Covenants in deeds are express covenants.
(20) Covenants in gross are such as do not run with the land.
(21) Covenants in law are implied covenants.
(22) Illegal covenants are those which are expressly or impliedly forbidden by law. Covenants are absolutely void when entered into in violation of the express provisions of statutes (5 Har. & J. [Md.] 193; 5 N. H. 96; 6 N. H. 225; 1 Bin. [Pa.] 118; 6 Bin. [Pa.] 321; 4 Serg. & R. [Pa.] 159; 4 Halst. [N. J.] 252), or if they are of an immoral nature
(3 Burrows, 1568; 1 Esp. 13; 1 Bos. & P. 340; 3 T. B. Mon. [Ky.] 35), against public policy (4 Mass. 370; 5 Mass. 385; 7 Me. 113; 5 Halst. [N. J.] 87; 3 Day [Conn.] 145; 7 Watts [Pa.] 152; 5 Watts & S. [Pa.] 315; 6 Miss. 769; 2 McLean [U.S.] 464; 4 Wash. C. C. [U.S.] 297; 11 Wheat. [U.S.] 258), in general restraint of trade (21 Wend. [N. Y.] 166; 7 Cow. [N. Y.] 307; 6 Pick. [Mass.] 206; 19 Pick. [Mass.] 51), or fraudulent between the parties (4 Serg. & R. [Pa.] 483; 7 Watts & S. [Pa.] Ill; 5 Mass. 16), or third persons (3 Day [Conn.] 450; 14 Serg. & R. [Pa.] 214; 3 Caines [N. Y.] 213; 2 Johns. [N. Y.] 286; 12 Johns. [N. Y.] 306; 15 Pick. [Mass.] 49). Covenants are also classified generally in the same manner as simple contracts. See “Contract.” The difference between covenants of seizin, right to convey, and against encumbrances, and those of warranty, quiet enjoyment, and further assurance, is that the former are in the present tense, relating to something being or existing at the time the covenant is made, while the latter relate to something future, and are to guard against the consequence of some future

Covenants, Conditions, And Restrictions in the context of Real Estate

Resurces

See Also

• CC&R’s