A property owner is worried because their neighbour has decided to keep pigs on their land. The property owner believes that this activity goes against a covenant that their predecessor in title had agreed upon. The covenant clearly states that there should be no noxious, odorous, or offensive activity taking place on the neighbour's land.
What condition(s) must be met for the property owner to legally enforce the benefits of this covenant?
A property owner is worried because their neighbour has decided to keep pigs on their land. The property owner believes that this activity goes against a covenant that their predecessor in title had agreed upon. The covenant clearly states that there should be no noxious, odorous, or offensive activity taking place on the neighbour's land.
What condition(s) must be met for the property owner to legally enforce the benefits of this covenant?
The covenant must have been intended to run with the land held by the predecessor in title.
(E) One condition the property owner must satisfy is that the covenant must have been intended to run with the land held by the property owner's predecessor in title. Additionally, to enforce the benefit of the covenant at law, the property owner must show that (1) the covenant touches and concerns his land; (2) at the time the covenant was made, the property owner's predecessor in title held the legal estate in the land to be benefitted; and (3) the property owner now holds the legal estate in the land to be benefitted.
(A) is incorrect because the property owner's predecessor in title did not need to have held both the legal estate in the land to be benefitted and the land to be burdened for the property owner to enforce the covenant. As explained above, the predecessor in title needed to have held only the legal estate in the land to be benefitted.
(B) is incorrect because whether the neighbour's land is part of a building scheme may be relevant to enforcing the covenant in equity, but the question asks about enforcement at law.
(C) is incorrect because, in addition to not being a relevant condition, positive covenants generally bind only the original contracting parties and are difficult to enforce.
(D) is incorrect because the opposite is true: the covenant must not be personal for the property owner to enforce it. In other words, the covenant must touch and concern the land to be benefitted.