Definition
A covenant real is a promise made in a deed that is tied to land rather than to the individual who made it. Because it attaches to the property itself, a covenant real binds not only the original covenantor but also that party's heirs and assignees — and it passes to subsequent purchasers of the land. This distinguishes it from a personal covenant, which obligates only the covenantor personally and, upon death, becomes a claim against the covenantor's estate rather than a burden or benefit running forward with the property.
The object of a covenant real is always something annexed to, inherent in, or connected with land or other real property. A covenant to maintain a boundary wall, to refrain from building above a certain height, or to pay a rent charge are classic examples. The defining feature is not the form of the promise but its substance: it must relate sufficiently to the land that equity and the common law treat it as traveling with ownership rather than resting with a person.
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Common Confusion
COVENANT REAL vs. COVENANT RUNNING WITH THE LAND: These terms are closely related but not always identical in scope. A covenant real is the historical common-law category; a covenant running with the land is the modern doctrinal framework that governs whether a real covenant is enforceable against successors. Not every covenant real automatically runs — it must also satisfy the requirements of intent, touch and concern, and privity. Researchers working in older materials will encounter "covenant real" as the primary term; modern property law materials will shift to "running covenant" or "real covenant" with its associated elements test.
COVENANT REAL vs. EQUITABLE SERVITUDE: An equitable servitude achieves a similar practical result — binding successors with respect to land use — but through equity rather than the common-law covenant doctrine. Equitable servitudes require notice rather than strict privity. Conflating the two leads to misreading historical cases that applied one doctrine but not the other.
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Core Elements
For a covenant to qualify as a covenant real (and to run with the land to bind successors), the following must generally be present:
1. Made in a deed or instrument of sufficient formality. The covenant must appear in a writing conveying or relating to real property.
2. Intent to bind successors. The parties must have intended the covenant to bind not just themselves but their heirs, assignees, and subsequent owners. Express language such as "heirs and assigns" is the traditional signal; modern courts look to context when that language is absent.
3. Touch and concern the land. The covenant must relate to the use, enjoyment, or value of the land itself. Purely collateral personal obligations do not qualify.
4. Privity of estate. At common law, both horizontal privity (a pre-existing relationship between the original parties, typically grantor-grantee) and vertical privity (a successive ownership relationship between the original covenantor and the party sought to be bound) are required for the burden to run. The Restatement (Third) of Property relaxes these requirements, but historical sources reflect the stricter rule.
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Why It Matters in Research
The term "covenant real" is predominantly a historical and English-law term. American primary sources from the nineteenth and early twentieth centuries use it freely, often interchangeably with "real covenant." By the mid-twentieth century, American courts and scholars migrated toward the phrase "covenant running with the land," and the Restatement (Third) of Property (Servitudes) consolidates covenants and equitable servitudes into a unified "servitude" framework that largely displaces both older labels. Researchers reading older cases, deeds, or treatises must recognize "covenant real" as the functional ancestor of the modern running covenant and apply the appropriate doctrinal test for the era.
A significant trap in historical sources: Kent's Commentaries and Blackstone's Commentaries — both cited in the dictionary entries underlying this term — treat the covenant real as primarily a common-law inheritance doctrine. Later American cases layered on the equity-side requirements drawn from tulk v. Moxhay and its American descendants, creating a body of law that does not map cleanly onto the older English framework. Reading an 1850s Connecticut case (note Rapalje's citation to 6 Conn. 249) through the lens of modern Restatement doctrine, or vice versa, will produce analytical error.
Jurisdictional divergence is also material. Some states codified running covenant requirements by statute; others developed idiosyncratic privity rules. The historical dictionaries reflect a general common-law baseline, not state-specific variations.
For deed research and title examination, identifying whether a covenant in an older instrument was intended as a covenant real — and whether the elements for running were satisfied — determines whether the burden or benefit is still enforceable against a current owner. This question arises frequently in commercial title work, subdivision restriction disputes, and conservation easement analysis.
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Historical Dictionary Support
All three source dictionaries agree on the core definition: a covenant real is one made in a deed that binds the covenantor's heirs and passes to assignees or purchasers. Black's and Burrill's both cite Kent's Commentaries (4 Kent, Comm. 470–472) as authority, and Burrill adds Blackstone's Commentaries (2 Bl. Com. 304) for the foundational common-law grounding. The agreement across sources on this baseline is strong.
Where the sources are thin: none of the three dictionaries engages the elements test in any analytical depth. Burrill trails off at "a covenant which runs in the —," suggesting the entry was truncated in the available source text. Rapalje provides no independent definition, cross-referencing only to a Connecticut case citation. Black's adds the useful gloss that the object must be "annexed to, or inherent in, or connected with, land or other real property" — the functional predecessor of the touch-and-concern requirement — but does not develop privity or the running analysis.
The historical sources are most useful for establishing the basic distinction between covenant real and personal covenant, and for period-correct vocabulary in deed interpretation. They are inadequate guides to the full doctrinal framework a modern researcher needs.
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Jurisdictional Note
The Restatement (Third) of Property (Servitudes) has been adopted or cited favorably in a number of jurisdictions and collapses the traditional distinction between covenants real and equitable servitudes into a single servitude framework with relaxed privity requirements. Researchers should not assume that the classical covenant real doctrine — including strict horizontal privity — reflects current law in the jurisdiction under study without checking local authority.
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Encyclopedia Cross-Reference
Property Law Encyclopedia — Real Covenants: Creation, Requirements (Writing, Intent, Touch and Concern, Privity) (property_78)
Property Law Encyclopedia — Real Covenants: Running with the Land (Horizontal and Vertical Privity) (property_79)
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