MBE Rules · Real Property
Touch and Concern
Touch and concern (modern)
The rule
Covenants touch and concern when they affect the parties as landowners — use restrictions, HOA assessments, covenants not to compete on the land; the Restatement replaces the test with a rebuttable presumption of validity.
In plain English
The 'touch and concern' rule determines whether a covenant affects the parties involved in their capacity as landowners. If a covenant restricts how land can be used or imposes obligations related to the property, it typically meets this requirement.
Worked example
A homeowner agrees not to build a fence taller than four feet on their property as part of a neighborhood covenant. This restriction affects the homeowner's use of their land and is enforceable because it touches and concerns the property. Therefore, the covenant is valid and binding.
Memory hook
Covenants that touch and concern land are all about how landowners use their land.
The trap
Exams may present covenants that seem personal or unrelated to land use, tricking students into thinking they touch and concern when they do not.
How examiners test it
Questions often involve scenarios where a covenant's validity is challenged, requiring candidates to analyze whether it touches and concerns the land.
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