Also known as: touch and concern · touches and concerns · touching and concerning · touch-and-concern · touch and concern doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A characteristic of a covenant or promise in a lease that affects the use, value, or condition of the leased property itself rather than creating only a personal obligation between the original parties.
Tiana Tan leased laboratory space to Theresa Tucker under a written agreement requiring specialized ventilation maintenance. Theresa assigned the entire leasehold to Tyler Taylor with Tiana's consent but without any release. When the systems fell into disrepair, Tiana sued Theresa for breach. The maintenance promise touched and concerned the leased interest, so Theresa's contractual obligation survived the assignment.
Tanner Thompson leased a recycling site to Tessa Takahashi with an express buffer-vegetation covenant stated to bind assignees. Tessa assigned the full leasehold to Tabitha Taylor, who planned to pave the buffer. Tanner sued Tabitha to enforce the covenant. Because the promise touched and concerned the land and the parties intended it to run, Tabitha became obligated upon taking privity of estate.
Select any source to read its text and confirm it supports the definition.
Threshold Capital leased retail space to Titan Industries with a continuous-operation clause that the lease said would bind successors. Titan assigned the leasehold to Trinity Pharmaceuticals. Threshold sued Trinity to keep the store open during posted hours. The open-hours promise touched and concerned the transferred interest, allowing the benefit to run with the leasehold to Threshold.
Trailblazer Airlines leased hangar space to a maintenance firm under a promise to keep specialized safety systems operational. The firm assigned the lease to another operator planning lighter use. Trailblazer sought enforcement against the assignee. The safety-system obligation touched and concerned the leasehold because it directly regulated the physical condition and usability of the premises.
A covenant touches and concerns the land when it affects the use, value, or physical condition of the leased property itself rather than imposing only a personal obligation between the original parties. Maintenance duties, buffer requirements, and continuous-operation clauses are classic examples because they regulate how the premises may be used or kept.
Supporting sources
Yes, provided the original parties intended the burden to run, the assignee is not released, and the assignment creates privity of estate with the party entitled to enforce the promise. The touch-and-concern element is the first requirement under the governing rule for shifting the burden to the transferee.
Supporting sources
The original tenant remains liable on privity of contract unless the landlord affirmatively releases the obligation. Assignment ends privity of estate but does not automatically discharge contractual duties created by an express lease promise that touches and concerns the premises.
Supporting sources
Courts examine whether the promise regulates the physical use, condition, or value of the leased property rather than merely personal rights between the contracting parties. Covenants addressing maintenance, appearance, buffers, or operating hours satisfy the test because they directly impact the premises and the landlord's reversion.
Supporting sources
…covenant is a real covenant that runs with the land of the dominant and servient estates only if (1) the subject of the covenant touches and concerns the land, (2) there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced, and (3) the original covenanting parties…