Running Covenants and Public Policy

When first encountering covenants running with the land, one may react against the very idea. Why should any person be able to enforce a promise not made to him or be bound by a promise he did not make? Modern contract law, particularly the rules about the assignment of contract rights and the rights of third-party beneficiaries, may answer the first question, but does not explain how anyone can be bound by a promise neither expressly nor impliedly made or consented to by him.

On the other hand, persons_ familiar with easements, liens, or mortgages understand that land ownership can be subject to and burdened by property interests in other persons, so that successive owners are subject to burdens they did not create. That a landowner’s promise may be similarly binding is not startling. Technically, a mere promise does not create an easement or a lien; but we all know of cases in which promissory language was held to create an easement.