Also known as: mutually privy · privity of contract
Written by attorneys · grounded in primary & secondary sources — see below
A simultaneous tenurial relationship between the original parties to a covenant requiring that they hold interests in the same land at the time the covenant is created. This form of privity of estate historically served as a prerequisite for the covenant to run with the land to successors. Courts today rarely impose the requirement.
Mason McCarthy leased rooftop space to Matrix Technologies under a lease containing an express maintenance promise that touched and concerned the premises. The lease created a tenurial relationship between Mason and Matrix at the moment of execution. When Matrix later assigned the lease, the original parties' mutual privity preserved Mason's ability to enforce the promise against Matrix on contractual grounds.
Musa Mensah leased property to Monarch Pharmaceuticals with an express promise to maintain equipment. Monarch assigned the lease to Morgan Financial after expressly promising in the assignment document to perform the maintenance duties. The original landlord-tenant relationship supplied mutual privity, and the assignee's promise shifted its own later liability to a contractual basis.
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Madison Meyers and Mohan Malhotra acquired adjacent parcels as tenants in common and recorded a covenant restricting industrial use. Their simultaneous ownership created mutual privity at the time the covenant was made. A later purchaser of one parcel remained bound because the original parties' tenurial relationship satisfied the historical privity requirement.
Malcolm McKinley purchased a unit subject to recorded covenants limiting pet ownership. The developer and initial purchasers held simultaneous interests in the common property, establishing mutual privity. Later owners remained subject to the restriction because the original parties' tenurial relationship met the traditional requirement for the covenant to run.
Ming Ma bought a lot in a planned community subject to recorded building restrictions. The original subdivider and lot purchasers held concurrent interests in the development, creating mutual privity. The committee could enforce the restrictions against Ma because the initial parties' tenurial relationship satisfied the historical privity element.
Momentum Capital purchased vehicles from Henningsen v. Bloomfield Motors under a contract containing warranty terms. The buyer and seller stood in a direct contractual relationship at formation, but the transaction lacked the simultaneous land interests required for mutual privity of estate. The court therefore analyzed liability under contract rather than property covenant rules.
Mutual privity exists when the original parties hold simultaneous interests in the same land, such as landlord and tenant or co-owners. This tenurial relationship was historically required for a covenant to run with the land.
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Mutual privity is rarely required under modern law. Most jurisdictions now rely on horizontal and vertical privity instead, and the Restatement of Servitudes eliminates the privity requirement entirely.
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Mutual privity concerns simultaneous land interests between original parties and historically supported running covenants. Privity of contract arises from an express promise in the lease and survives assignment even after estate privity ends.
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Yes. When parties hold undivided interests in the same parcel as co-owners, they satisfy the mutual privity requirement because they possess simultaneous interests in the identical land.
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…warranty provisions and the disclaimer of liability contained in the purchase order do not bind them because (1) there was no privity of contract between them and the defendants, (2) the warranty provisions are not binding upon them because they were not read by or explained to Mr. Henningsen before he signed the purchase order, (3)…