Also known as:touch and concern · touching and concerning · touches and concerns the land · touch and concern test · touch-and-concern
Written by attorneys · grounded in primary & secondary sources — see below
A quality of an express promise in a lease or deed that affects the use, value, or physical condition of the leased or burdened property. The quality permits the burden or benefit of the promise to run with the transferred interest to successors who come into privity of estate. The quality is determined by whether the promise regulates the tenant's mode of enjoyment or the landlord's reversionary interest rather than imposing a purely personal obligation.
Sources & Authorities
How it applies
Common Examples
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Landlord Remains Liable After Sale
Landlord LLC leased a theater to IndieScreen Corp and expressly promised to maintain the marquee and exterior lighting. Two years later Landlord LLC sold the complex to Developer Inc. IndieScreen never released Landlord LLC from the promise. After the sale Developer Inc turned off the lights. IndieScreen sued Landlord LLC for breach. The original landlord remains bound because its contractual obligation rests on privity of contract and the promise touches and concerns the leased space.
Assignee Bound by Use Covenants
Riverside Lofts LLC leased ground-floor space to Marco under a lease requiring daily breakfast service and public patio access. Marco assigned the lease to Urban Bowl Inc with the landlord's consent. Urban Bowl converted the space to a lunch-only concept and locked the patio. Riverside sued Urban Bowl. The assignee is obligated because the operating covenants touch and concern the leasehold, the parties intended them to run, and the assignment created privity of estate.
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Hornbooks
Course Outlines
Study Supplements
Amenity Promise Runs to Buyer
Bayview Properties LLC leased offices and promised to operate an on-site fitness center and maintain rooftop terraces. Bayview sold the building to Harbor Towers LLC subject to the leases. Harbor announced it would close the amenities. The tenants sued Harbor. The transferee landlord is bound because the amenity promises touch and concern the leased premises, the original parties intended them to run, and the sale placed Harbor in privity of estate with the tenants.
Maintenance Covenant Survives Transfer
Apex Biotech leased lab space to NovaPharm and expressly promised to maintain specialized ventilation systems. Apex sold the campus to Helix Capital Fund. NovaPharm never released Apex. After the sale the systems failed. NovaPharm sued Apex. The original landlord remains liable on its contractual promise because the maintenance obligation touches and concerns the leased premises and no release occurred.
Common questions
Frequently Asked
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Does a promise to pay money always touch and concern the leased property?+
A promise to pay rent or taxes touches and concerns the leased property because it directly affects the landlord's reversionary interest and the tenant's possessory interest. The Restatement examples treat monetary obligations tied to the land as running covenants when the other elements are met.
Supporting sources
What happens to the original landlord's liability after it sells the property?+
The original landlord remains liable on an express lease promise that touches and concerns the land if the obligation rests on privity of contract and the tenant has not released it. The sale ends privity of estate but does not automatically discharge contractual duties.
Supporting sources
When is an assignee of the tenant bound by lease covenants?+
An assignee is bound when the covenant creates a burden that touches and concerns the leasehold, the original parties intended the burden to run, the assignee is not released, and the assignment creates privity of estate. Operating covenants that regulate use of the premises satisfy the touch-and-concern element.
Supporting sources
Does a covenant to maintain specialized building systems touch and concern the leasehold?+
Yes. A covenant requiring maintenance of ventilation, waste-disposal, or structural systems directly affects the physical condition and usability of the premises and therefore touches and concerns the transferred interest.
Supporting sources
416 S.E.2d 177 (N.C. 1992)Property
…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 intended the…