Content of Covenants in Leases

In determining what covenants in a lease will run so as to be enforceable by or against the assignee of the lessee or lessor, the formula that has been consecrated to this problem is that the covenant "must affect the nature, quality, or value of the thing demised or the mode of occupying it." This phrase which was used by Lord ELLENBOROUGH in Congleton v. Pattison is an expansion of the statement in Spencer's case that such a covenant must "touch or concern the thing demised." A second statement not so frequently quoted is that of that "if it be beneficial without regard to his continuing owner of the estate, it is a mere collateral covenant upon which the assignee cannot sue." The purpose of this article is to examine the various covenants that have been held to be embraced within one or both of these two generalizations and to show that these covenants are in reality of three different species, each having its own legal characteristics. Some preliminary observations must be made; the question as to what phraseology must be used in order to make a covenant run; the further question of whether, if a covenant is of a sort that may run it must run, or may nevertheless, if the parties so elect, be made purely personal, will not be considered; nor will the covenants for title be taken up.