This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
As regards rights and liabilities arising from privity of contract, that is, based on the contractual stipulations contained in the instrument of lease, while there is reason for thinking that even at common law the burden and benefit of such covenants passed to an assignee of the leasehold,38 the right of such assignee, as well as of the transferee of the reversion, to avail himself of such covenants, and his subjection to the burden thereof, is ordinarily re garded as determined primarily by the statute 32 Hen. 8, c. 34 (A. D. 1540). This statute was passed after the dissolution of the monasteries, and the forfeiture of their lands, for the purpose of enabling the crown, or those to whom the forfeited lands were granted, to enforce the covenants of the lessees of the lands. The statute, however, was broader than this in its terms, and gave to the lessors, and likewise to their assigns, the right to enforce covenants and conditions against the lessee or their assigns, and gave reciprocal rights to lessees or their assigns to enforce any covenants against the lessors or their assigns. The statute thus in effect declared that both the benefit and the burden of any covenants should pass to the assigns of either a lessor or a lessee.
32. See Besley v. Besley, 9 Ch. Div. 103; Clayton v. Leech, 41 Ch. Div. 103; Eten v. Luyster, 60 N. Y. 252.
33. Hand v. Blow  2 Ch. 721; Brock v. Desmond & Co., 154 Ala. 634, 129 Am. St. Rep. 71, 45 So. 665; Frazier v. Caruthers, 44 111. App. 61; Miller v. Prescott, 163 Mass. 12, 47 Am. St. Rep. 434, 39 N. E. 409; Stees v. Kranz, 32
Minn. 313, 20 N. W. 241; Eten v. Luyster, 60 N. Y. 252; Cuschner v. Westlake, 43 Wash. 690, 86 Pac. 948.
34. Ante Sec. 54(d) note 90.
35. Kenyon v. Young, 48 Neb. 890, 67 N. W. 885.
36. Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938.
37. See post, Sec. 413.
In a number of states statutes of a somewhat similar character have been adopted39 and in other states the English law upon the subject may ordinarily be regarded as in force.40 Apart from statute, however,
38. In favor of such a view, are Fitzh. Abr., Covenant, pl. 30, Bracton's Note Book, 804, and Bro. Abr. Covenant, pl. 32. See 1 Tiffany, Landlord & Ten. Sec. 158a(2) note 329. It has accordingly been said that at common law covenants ran with the land, meaning the leasehold, but not with the reversion. See I Wms. Saund. 241b, notes 3 and 6 to Thursby v. Plant; 1 Smith's Leading Cases, (11th Ed.) 55, notes to Spencer's Case. Manchester Brewery Co. v.
Coombs [1901[ 2 Ch. 608.
39. See 1 Tiffany, Landlord & Ten. Sec. 149, notes 79-87.
40. See Fisher v. Deering, 60 111 114; David Bradley & Co. v. Peabody Coal Co., 99 111. App. 427; Outtoun v. Dulin, 72 Md. 536, 20 Atl. 134; Howland v. Coffin, 29 Mass. (12 Pick.) 125; Patten v. Deshon, 67 Mass. (1 Gray) 325; Streaper v. Fisher, 1 Rawle (Pa.) 155, 18 Am. Dec. 604.
But see to the contrary Baldwin v. Walker, 21 Conn. 168, 181;
[ Sec. 56 it seems that the transfer of a reversion might be construed as intended to pass the right of action for subsequent breaches of covenants entered into by the lessee,41 so as to render applicable the doctrine, not apparently very modern,42 allowing the assignee of a chose in action to sue thereon in the name of the assignor,43 or so as to bring the case within one of the numerous state statutes allowing such an assignee to sue thereon in his own name.44
A covenant of the lease, the benefit of which, or liability under which, passes to the transferee of the reversion or to an assignee of the leasehold, is said to "run with the land."
The statute of 32 Hen. 8, c. 34, applies in terms to covenants in "indentures of lease" only, and consequently, in so far as the running of the benefit or burden of a contractual stipulation in an instrument of lease is dependent on that statute, it is necessary that the instrument be under seal.45 The question whether, if the instrument is not under seal, the benefit or burden of a stipulation therein will run has been but rarely referred to in this country, but it may be safely assumed that, in some at least of the numerous cases in which the benefit or burden was regarded as running, the instrument was not under the seal of either party. In states in which the use of a seal has been dispensed with by statute, the absence of a seal on the instrument would no doubt be immaterial.
Masury v. Southworth, 9 Ohio St. 340; Taylor v. De Bus, 31 Ohio St. 468, 473.
41. See Rawle, Covenants for Title Sec. 226.
42. See Pollock, Contracts (6th Ed.) 204, and Appendix (F).
43. See Thompson v. Rose, 8 Cow. (N. Y.) 266; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368; Bridgham v. Tileston, 5 Allen
(Mass.) 371; Allcock v. Moor-house, 9 Q. B. Div. 366.
44. Masury v. Southworth, 9 Ohio St. 340; Smith v. Harrison, 42 Ohio St. 180.
45. See Standen v. Christmas, 10 Q. B. 135; Bickford v. Par-son, 5 C. B. 921; Sheets v. Sel-den's Lessee, 2 Wall. (U. S.) 177, 17 L. Ed. 822; Kennedy v. Owen, 136 Mass. 199.
- (b) Character of the covenant. By a leading case, known as Spencer's Case,46 certain limitations were imposed upon the passing of the burdens and benefits of covenants. The most important of these limitations is to the effect that the covenant will not run with the land "if it be merely collateral to the land, and doth not touch or concern the thing demised," that is, the land. Generally speaking, it seems, a covenant by the lessor or lessee will run as touching and concerning the land if it is such as to benefit either the landlord or tenant by reason of his relation to this particular land. The cases do not, however, assert any clear and satisfactory criterion in this regard.46a
Among covenants by the lessee which have been held to touch or concern the land are covenants to repair,47 not to carry on a particular trade on the premises,48 not to assign without the assent of the lessor, assigns being named in the covenant,49 to pay rent,50 to pay taxes,51 to relinquish possession at the end of the term business within a certain distance of the premises.61