Also known as: touch and concern · touches and concerns · touch-and-concern test · touch & concern test · touch and concern doctrine
Written by attorneys — see sources below.
A substantive criterion used to determine whether a covenant or promise sufficiently relates to the use, value, or physical condition of land so that its burden or benefit will run with the land to successors in interest. The test focuses on whether the obligation affects the land itself rather than imposing a purely personal duty between the original parties. Satisfaction of the test supports enforcement against or by subsequent owners or tenants when other requirements such as intent and privity are also met.
Tyler Taylor leased a warehouse to Trevor Tate under a written lease that required the tenant to maintain specialized loading docks attached to the building. Trevor Tate assigned the leasehold to Thomas Thompson without obtaining any release from Tyler Taylor. Because the maintenance obligation touches and concerns the leased premises, Tyler Taylor remains bound by the covenant after the assignment under privity of contract.
Tamara Tan leased laboratory space to Theodore Tucker under a lease containing an express promise to maintain ventilation systems that protect the building structure. Theodore Tucker assigned the entire leasehold to Tara Tran, creating privity of estate with Tamara Tan. The maintenance promise creates a burden that touches and concerns the transferred interest, so Tara Tran must perform the covenant.
Tundra Resources leased a commercial lot to Topaz Mining under a lease promising the landlord would resurface a shared access road serving the premises. Tundra Resources transferred its reversion to Terra Financial. The resurfacing promise touches and concerns the transferred interest, allowing the benefit to run to Terra Financial as the new landlord.
TechVista Solutions sold an office building subject to a recorded covenant requiring the owner to purchase all office supplies from a designated vendor for twenty years. The buyer later challenges enforcement by arguing the supply obligation does not touch and concern the land. Because the promise imposes a purely commercial duty unrelated to the physical use or value of the property, the covenant does not satisfy the test and will not bind successors.
The promise must create a burden that affects the use, value, or physical condition of the leased premises rather than imposing a purely personal obligation. Maintenance of building systems and access roads are classic examples that meet the test. Purely commercial supply duties typically do not.
Supporting sources
When the promise touches and concerns the land and the parties intended the burden to run, the transferee becomes obligated once the assignment creates privity of estate with the party entitled to enforce the promise. The transferee incurs no liability for breaches that occurred before the transfer.
Supporting sources
The original tenant remains liable on privity of contract unless the landlord affirmatively relieves the tenant of the obligation. Consent to the assignment or direct dealings with the assignee do not by themselves constitute the required relief.
Supporting sources
…against the covenantor’s successor in interest unless the covenantee is able to demonstrate that the benefit of the covenant touches and concerns land owned by him and is not personal to him. See Stoebuck, 52 Wash. L. Rev. 861, 902 (interpreting Stegall ). We do not agree that Stegall or any other opinion of this Court set forth…