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Washington Law Review

Abstract

Save for the subject of perpetuities (and arguably even including it), there is no subject encountered by law students in their basic property courses that so baffles them as does running covenants. But there seems to be no concise writing that lays out the subject of running covenants in a nutshell. It is not that nothing has been written on the subject, for much has been published this century on it and continues to be. The problem is that the writings deal with smaller or greater portions of the overall field. There are articles on real covenants, on equitable restrictions, on covenants in leases, and on various aspects or problems of these subjects. There is a wearisome run of articles criticizing and defending the Restatement of Property's stand on real covenants. What law students need, however, is a succinct statement that is compendious and, above all, that imposes a rigorous framework of analysis on an area of law that is as shapeless as an amoeba. Not only do fledgling lawyers need such a statement, but, the cases cry out, so do their seniors of the bench and bar. Surely there is no area of American law in which judicial decisions are more confused—or wholly lacking—in analysis. Analysis, then, will be the keynote here. The first and largest step will be to divide, for analysis purposes, the subject of running covenants into two major areas: real covenants and equitable restrictions. Even though the decisions increasingly fail to distinguish the two, as do many writings, they developed as separate doctrines and in separate courts. Each must be studied separately if one is to understand their close connection. Within these two major divisions, subdivisions will be built around the elements of real covenants and of equitable restrictions. Again, it is true that the decisions chronically fail to identify the elements in issue, but clear analysis requires it. A final division of the article will assess where the law of running covenants seems to be, and where it might profitably be, headed.

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