A real covenant is a term used in real property law to describe a promise concerning the use of land. Real covenants are classified as either affirmative, a promise to do something (e.g. build a fence) or negative, a promise to not do something (e.g. not use the land for commercial activity).

Real covenants run with the land at law which means that subsequent owners may be able to enforce them or be burdened by them.

English courts restricted the use of real covenants, for fear that they would decrease the value of land. Modern American courts, however, have recognized that real covenants can be used to enhance the land.

Three elements must be proven for a Real Covenant Burden to run with the land:

1. There must be a writing;
2. There touch and concern the land or meet a reasonableness test (minority rule);
3. There must be privity
   Privity of estate
   Privity of estate is the relation that subsists between a landlord and his tenant, which creates a relationship between landlord and tenant.It is a general rule that a termor cannot transfer the tenancy or privity of estate between himself and his landlord, without the latter's consent: an...
   
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Four elements are required for a Real Covenant Benefit to run:

1. There must be a writing;
2. There must be the intent for the covenant to run with the benefited estate;
3. There must be privity;
4. The restrictions must touch and concern the benefited parcel OR they must meet a reasonableness test (minority rule);

Writing

The writing that creates a restrictive covenant is usually contained within the deed. The writing will generally state the nature of the promise/restriction on the land.

Intent to Run with the Burdened and Benefited Estate:

Intent is usually apprehended by first visiting the conveying instrument within which the real covenant is contained. Certain language may be obvious, such as: this covenant runs with the land for the burdened estate" or "in granting this conveyance the grantor intends to maintain this land as a park forever." In the event that the conveying instrument is vague as to the intent of the grantor to have the burden run with the land, courts and parties attempt to enforce the covenant on the burdened estate will look to parol evidence. This is evidence of the grantor's intent to have the burden run with the land that is not found in the conveying instrument. Parol evidence going to the intent of the grantor to have the burden run with the land may be induced from circumstantial evidence or verbal admittances.

Privity

Privity analysis is a formality created by the courts in order to determine who can enforce the restrictions of real covenant. The privity first looked to is that of horizontal privity.

Horizontal privity is present in the initial conveyance of the property with the restrictive covenant. When a parcel is initially conveyed from a grantor to a grantee then there may be horizontal privity. However, there are two kinds of horizontal privity recognized by the courts: instantaneous and mutual. Instantaneous privity is present when the restrictive covenant is within the deed initially conveyed from the grantor to the grantee. Not all courts recognize instantaneous privity, presumably because it does not satisfy a relation strong enough to allow for a restrictive covenant to be enforced. The reason for this is thought to be that restrictive covenants may present a significant burden. Therefore, the courts will require a certain threshold of interest to be preserved by the granting or benefited party in order to enforce the covenant. The other kind of horizontal privity is mutual. This can be in the form of an appurtenant easement or a landlord/tenant relationship.

Once horizontal privity is established, there may be vertical privity. Again, there are two kinds of vertical privity. Strict vertical privity is present when there is a successive conveyance of property to a third party and the conveyor retains no interest. An example of this would be A conveys parcel X with a real covenant to B. B then conveys all of their interest in parcel X with the same real covenant to C. Some courts within certain jurisdictions will allow for relaxed vertical privity. This is present when property is conveyed to a successive owner and the conveyor retains some interest. This is usually in the form of a lease, where the conveyor's interest is in the form of a future interest in the property. This would look like A conveys parcel X with a real covenant to B. B then leases parcel X with the same real covenant C. In this situation, if the court allows the for relaxed vertical privity, then C can enforce A to comply with the restrictions in the real covenant.