covenant

/kavanant/ An agreement, convention, or promise of two or more parties, by deed in writing, signed, and delivered, by which either of the parties pledges himself to the other that something is either done, or shall be done, or shall not be done, or stipulates for the truth of certain facts. At common law, such agreements were required to be under seal.

The term is currently used primarily with respect to promises in conveyances or other instruments relating to real estate.

In its broadest usage, means any agreement or contract. The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant, or contract under seal.

General Classification

Covenants may be classified according to several distinct principles of division:

Absolute or conditional covenants.

An absolute covenant is one which is not qualified or limited by any condition.

Affirmative or negative covenants.

The former are those in which the party binds himself to the existence of a present state of facts as represented or to the future performance of some act; while the latter are those in which the covenantor obliges himself not to do or perform some act.

An "affirmative covenant" is an agreement whereby the covenantor undertakes that something shall be done. City of New York v. Turnpike Development Corp., 36 Misc.2d 704, 233 N.Y.S.2d 887, 891, 892.

Declaratory or obligatory covenants.

The former are those which serve to limit or direct uses; while the latter are those which are binding on the party himself.

Dependent, concurrent, and independent covenants.

Covenants are either dependent, concurrent, or mutual and independent. The first depends on the prior performance of some act or condition, and, until the condition is performed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time; and if one party is ready, and offers to perform his part, and the other neglects or refuses 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. The third sort is where either party may recover damages from the other for the injuries he may have received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff.

Mutual and independent covenants are such as do not go to the whole consideration on both sides, but only to a part, and where separate actions lie for breaches on either side to recover damages for the injury sustained by breach.

Covenants are dependent where performance by one party is conditioned on and subject to performance by the other, and in such case the party who seeks performance must show performance or a tender or readiness to perform on his part; but covenants are independent when actual performance of one is not dependent on another, and where, in consequence, the remedy of both sides is by action.

Disjunctive covenants.

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.

Executed or executory covenants.

The former being such as relate to an act already performed; while the latter are those whose performance is to be future.

Express or implied covenants.

The former being those which are created by the express words of the parties to the deed declaratory of their intention, while implied covenants are those which are inferred by the law from certain words in a deed which imply (though they do not express) them. An implied covenant is one which may reasonably be inferred from whole agreement and circumstances attending its execution. Anderson v. Britt, Ky., 375 S.W.2d 258, 260.

Express covenants are also called covenants "in deed," as distinguished from covenants "in law."

General or specific covenants.

The former relate to land generally and place the covenantee in the position of a specialty creditor only; the latter relate to particular lands and give the covenantee a lien thereon.

Inherent and collateral covenants.

The former being such as immediately affect the particular property, while the latter affect some property collateral thereto or some matter collateral to the grant or lease. A covenant inherent is one which is conversant about the land, and knit to the estate in the land; as, that the thing demised shall be quietly enjoyed, shall be kept in repair, or shall not be aliened. A covenant collateral is one which is conversant about some collateral thing that doth nothing at all, or not so immediately, concern the thing granted; as to pay a sum of money in gross, etc.

Joint or several covenants.

The former bind both or all the covenantors together; the latter bind each of them separately.

A covenant may be both joint and several at the same time, as regards the covenantors; but, as regards the covenantees, they cannot be joint and several for one and the same cause, but must be either joint or several only. Covenants are usually joint or several according as the interests of the covenantees are such; but the words of the covenant, where they are unambiguous, will decide, although, where they are ambiguous the nature of the interests as being joint or several is left to decide.

Principal and auxiliary covenants.

The former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it.

Real covenants.

A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant which has for its object something annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land is invested with it and may sue upon it for a breach happening in his time.

Transitive or intransitive covenants.

The former being those personal covenants the duty of performing which passes over to the representatives of the covenantor; while the latter are those the duty of performing which is limited to the covenantor himself, and does not pass over to his representative.