The touch and concern doctrine is the test courts use to decide whether a promise written into a deed is tied to the land itself or only to the people who originally made it. If a covenant touches and concerns the land, it runs with the property and binds every future owner. If it fails the test, it’s a personal obligation that dies when the original parties move on. The distinction matters: a buyer who ignores a valid covenant can be sued, and an owner trying to enforce one that fails the test has no claim worth pursuing.
What the Doctrine Asks
The core question has stayed consistent for centuries: does the promise affect the land itself, or just the people who happen to own it right now? The idea first appeared in English law through Spencer’s Case in 1583, which held that covenants relating to existing aspects of leased land bind future holders of the lease, while purely personal promises do not.
The most widely cited modern formulation is Professor Harry Bigelow’s 1914 test. It asks whether the covenant makes the burdened owner’s property interest less valuable while at the same time enhancing the benefited owner’s interest. If it does both, it touches and concerns the land. If it only affects the parties personally, such as a promise to buy your neighbor’s homemade jam every month, it fails. The test has been criticized as circular, since a covenant touches the land if it affects landowners as landowners, which essentially restates the question. Courts still reach for it because nothing better has replaced it.1Harvard Law Review. Touch and Concern, the Restatement (Third) of Property: Servitudes, and a Proposal
The Leading American Case
The landmark American decision is Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank, decided by New York’s highest court in 1938. The covenant at issue required property owners to pay annual charges funding road maintenance, parks, beach upkeep, and sewers. The bank, which had acquired the land through foreclosure, argued this was just a personal financial obligation with no real connection to the land. The court disagreed. Because the fees directly supported infrastructure that made every lot in the development usable and valuable, the obligation touched and concerned the land despite being a money payment rather than a physical restriction on use.2New York State Law Reporting Bureau. Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank
Neponsit set the pattern that still governs today. A covenant does not have to physically restrict the land to touch and concern it. What matters is whether the obligation is bound up with how the land is used, maintained, or valued.
Negative Covenants
Negative covenants are promises not to do something with the land. A height restriction that preserves a neighbor’s ocean view, a prohibition on commercial activity in a residential subdivision, a rule against removing mature trees. Courts almost always find that negative covenants touch and concern the land, because the restriction is inseparable from the property’s physical character. A 25-foot height cap on a lot changes what any owner can build, regardless of who holds the deed. The restriction follows the dirt.
Residential developments lean heavily on negative covenants to maintain neighborhood consistency. Architectural review requirements, setback rules, and limitations on exterior alterations are standard. Violating them can lead to a lawsuit by the homeowners’ association or by a neighboring property owner who benefits from the restriction.
Affirmative Covenants and HOA Dues
Affirmative covenants require owners to do something, and the most common example is the obligation to pay homeowners’ association dues. At first glance, paying a monthly fee looks like a personal financial debt, exactly the kind of thing that should not follow the land. But courts consistently hold that HOA fees touch and concern the property because the money funds services tied to the land itself: road repair, landscaping, security, pool maintenance, and similar upkeep that keeps the development functional.2New York State Law Reporting Bureau. Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank
HOA fees vary widely. A single-family neighborhood with minimal common areas might charge well under $100 per month, while a high-rise condominium with a doorman, gym, and parking garage can run over $1,000. The obligation persists regardless of whether an owner actually uses the shared amenities. Falling behind can eventually lead to a lien on the property and, in some jurisdictions, foreclosure.
Not every affirmative duty qualifies. A covenant requiring a landowner to hire a specific contractor or purchase supplies from a particular vendor looks more like a personal service contract than a land-based obligation. Courts scrutinize whether the duty has a genuine connection to the property’s use or value. If the obligation would exist and make sense even if the person did not own the land, it probably fails the test.
What Else a Covenant Needs to Run
Touch and concern is necessary but not sufficient. Several other requirements have to be satisfied before a covenant binds future owners.
The covenant must be in writing. Under the Statute of Frauds, a handshake agreement between neighbors about fence maintenance or tree removal will not create an obligation that follows the deed. The writing must also express the original parties’ intent to bind successors. Standard deed language such as “this covenant shall run with the land and bind all heirs and assigns” does the job, and courts look for that kind of explicit signal.
Notice is the second gatekeeper. A covenant cannot bind a buyer who had no way of knowing it existed. Actual notice means someone told the buyer directly. Constructive notice means the covenant was recorded in public land records, where a title search would turn it up. Inquiry notice applies when something visible on the property, like a shared driveway or a uniform setback line, would prompt a reasonable buyer to investigate.
Finally, for a real covenant’s burden to run, courts require privity of estate: a legal relationship linking the original parties and connecting them to their successors. The clean case is a grantor-grantee transaction where a restriction appears in the deed itself. Two neighbors who simply promise each other something without any underlying property transaction may not satisfy privity for a real covenant, though the promise can still be enforceable as an equitable servitude. The practical difference is the remedy: a real covenant yields money damages, while an equitable servitude yields a court order to comply.
Covenants Courts Will Not Enforce
Even a covenant that touches and concerns the land can fail on other grounds.
Racially restrictive covenants were once widespread in American deeds. The Supreme Court addressed them in Shelley v. Kraemer (1948), holding that while private parties can write whatever they want into a deed, state courts cannot enforce racially restrictive agreements without violating the Equal Protection Clause of the Fourteenth Amendment.3Justia. Shelley v. Kraemer, 334 U.S. 1 (1948) Congress went further with the Fair Housing Act of 1968, which makes it unlawful to refuse to sell or rent a dwelling based on race, color, religion, sex, familial status, or national origin.4Office of the Law Revision Counsel. 42 USC 3604 – Discrimination in the Sale or Rental of Housing Federal regulations specifically identify the enforcement of discriminatory deed covenants as a prohibited practice.5eCFR. 24 CFR Part 100 – Discriminatory Conduct Under the Fair Housing Act The language still appears in older deeds, but no court will enforce it.
Courts also reject unreasonable restraints on alienation. A deed restriction prohibiting any sale for 50 years, or one requiring approval from a specific individual before any transfer, can be struck down. Property law generally disfavors letting a current owner tie the hands of future generations in ways that freeze land out of the market. Whether a restraint crosses the line depends on its scope, duration, and purpose. Partial restraints with a reasonable justification, like a right of first refusal for a neighboring landowner, are more likely to survive than blanket prohibitions.
The Modern Shift Away From the Doctrine
Touch and concern has been under sustained academic criticism for decades. Critics argue the test is vague, easily manipulated, and often used to mask the real reasons courts choose to enforce or reject a particular covenant.1Harvard Law Review. Touch and Concern, the Restatement (Third) of Property: Servitudes, and a Proposal
The Restatement (Third) of Property: Servitudes, published in 2000 by the American Law Institute, responded by abolishing the touch and concern requirement entirely. Under Section 3.1, a servitude is presumed valid unless it is illegal, unconstitutional, or violates public policy. Rather than ask whether a covenant touches the land, courts applying the Restatement look at specific grounds for invalidation:
- Arbitrary or spiteful restrictions created to harass rather than serve a legitimate land-use purpose
- Restrictions that unreasonably burden fundamental constitutional rights
- Unreasonable restraints on alienation
- Restraints on trade or competition designed to suppress economic activity rather than protect land values
- Unconscionable terms imposed through unfair bargaining
The list is not exhaustive, and courts retain flexibility to identify new policy grounds.6Nebraska Law Review. The Touch and Concern Doctrine and the Restatement (Third) of Servitudes: A Tribute to Lawrence E. Berger Not every state has adopted this approach. Many courts still apply the traditional touch and concern analysis, and some blend elements of both. For anyone trying to figure out whether a specific covenant is enforceable, the jurisdiction matters enormously. The traditional test and the modern test can produce different results on the same facts.
How a Running Covenant Can End
Covenants that run with the land are durable but not permanent. Several mechanisms can terminate them.
- Expiration. Many covenants include a built-in end date, sometimes with an automatic renewal unless a certain percentage of affected owners vote to let them lapse.
- Release. All parties who benefit from the covenant can agree to release it. In a subdivision, that may require signatures from every affected lot owner.
- Merger. If one person acquires both the burdened and benefited properties, the covenant disappears.
- Abandonment. Widespread, long-standing violations that go unenforced can lead a court to find the covenant abandoned.
- Changed conditions. If the surrounding area has changed so dramatically that the restriction no longer serves its original purpose, a court may refuse to enforce it. The change has to be substantial; a single new business on the block typically will not suffice.
- Condemnation. A government taking of the burdened property through eminent domain can extinguish the covenant, particularly in a total taking.
Foreclosure of a lien that predates the covenant can also wipe it out, since the covenant was created after the senior interest attached. The recording date of a covenant relative to other encumbrances matters more than most people realize.