Runyon v. Paley

This case involves a suit to enjoin defendants from constructing condominium units on their property adjacent to the Pamlico Sound on Ocracoke Island. Plaintiffs maintain that defendants’ property is subject to restrictive covenants that prohibit the construction of condominiums. The sole question presented for our review is whether plaintiffs are entitled to enforce the restrictive covenants.

On 17 May 1937, Ruth Bragg Gaskins acquired a four-acre tract of land located in the Village of Ocracoke bounded on the *297 west by the Pamlico Sound and on the east by Silver Lake. By various deeds, Mrs. Gaskins conveyed out several lots, which were later developed for residential use.

One and one-half acres of the sound-front property, part of which is at issue here, were conveyed by Mrs. Gaskins and her husband to plaintiffs Runyon on 1 May 1954. On 6 January 1960, the Runyons reconveyed the one and one-half acre tract, together with a second tract consisting of one-eighth of an acre, to Mrs. Gaskins. By separate deeds dated 8 January 1960, Mrs. Gaskins, then widowed, conveyed to the Runyons a lake-front lot and a fifteen-foot-wide strip of land that runs to the shore of Pamlico Sound from the roadway separating the lake-front and sound-front lots. This fifteen-foot strip was part of the one and one-half acre parcel that the Runyons had reconveyed to Mrs. Gaskins.

The next day, 9 January 1960, Mrs. Gaskins conveyed the remainder of the one and one-half acre parcel to Doward H. Brugh and his wife, Jacquelyn 0. Brugh. Included in the deed of conveyance from Mrs. Gaskins to the Brughs was the following:

But this land is being conveyed subject to certain restrictions as to the use thereof, running with said land by whomsoever owned, until removed as herein set out; said restrictions, which are expressly assented to by [the Brughs], in accepting this deed, are as follows:

(1) Said lot shall be used for residential purposes and not for business, manufacturing, commercial or apartment house purposes; provided, however, this restriction shall not apply to churches or to the office of a professional man which is located in his residence, and

(2) Not more than two residences and such outbuildings as are appurtenant thereto, shall be erected or allowed to remain on said lot. This restriction shall be in full force and effect until such time as adjacent or nearby properties are turned to commercial use, in which case the restrictions herein set out will no longer apply. The word “nearby” shall, for all intents and purposes, be construed to mean within 450 feet thereof.

To HAVE AND TO HOLD the aforesaid tract or parcel of land and all privileges and appurtenances thereunto belonging or in anywise thereunto appertaining, unto them, the [Brughs], *298 as tenants by the entirety, their heirs and assigns, to their only use and behoof in fee simple absolute forever, [b]ut subject always to the restrictions as to use as hereinabove set out.

Prior to the conveyance of this land to the Brughs, Mrs. Gaskins had constructed a residential dwelling in which she lived on lakefront property across the road from the property conveyed to the Brughs. Mrs. Gaskins retained this land and continued to live on this property until her death in August 1961. Plaintiff Williams, Mrs. Gaskins’ daughter, has since acquired the property retained by Mrs. Gaskins.

By mesne conveyances, defendant Warren D. Paley acquired the property conveyed by Mrs. Gaskins to the Brughs. Thereafter, defendant Warren Paley and his wife, defendant Claire Paley, entered into a partnership with defendant Midgett Realty and began constructing condominium units on the property.

Plaintiffs brought this suit, seeking to enjoin defendants from using the property in a manner that is inconsistent with the restrictive covenants included in the deed from Mrs. Gaskins to the Brughs. In their complaint, plaintiffs alleged that the restrictive covenants were placed on the property “for the benefit of [Mrs. Gaskins’] property and neighboring property owners, specifically including and intending to benefit the Runyons.” Plaintiffs further alleged that the “restrictive covenants have not been removed and are enforceable by plaintiffs.”

Defendants moved to dismiss the lawsuit, and plaintiffs thereafter moved for summary judgment. Following a hearing on both motions, the trial court granted defendants’ motion to dismiss for failure to state a claim upon which relief could be granted and, pursuant to Rule 54(b), rendered a final judgment after having determined that there was no just reason for delay in any appeal of the matter. The Court of Appeals affirmed the trial court, concluding that the restrictive covenants were personal to Mrs. Gaskins and became unenforceable at her death. Judge Greene dissented in part, concluding that the dismissal of plaintiff Williams’ claim was erroneous.

At the outset, we note that at the hearing on plaintiffs’ and defendants’ motions, the trial court allowed plaintiffs to present evidence of matters outside the pleadings. Because it is not clear whether the trial court excluded this evidence in ruling on defend *299 ants’ motion to dismiss, the trial court’s order must be treated on appeal as a partial summary judgment for defendants. 1 N.C.R. Civ. P. 12(b)(6).

Having considered the evidence presented to the trial court, we conclude that plaintiff Williams presented sufficient evidence to show that the covenants at issue here are real covenants enforceable by her as an owner of property retained by Mrs. Gaskins', the covenantee. Accordingly, we reverse that part of the Court of Appeals’ decision that affirmed the trial court’s dismissal of plaintiff Williams’ claim. However, we agree with the Court of Appeals that the covenants are not enforceable by the Runyons, and we therefore affirm that part of the Court of Appeals’ decision that concerns the dismissal of the Runyons’ claim.

It is well established that an owner of land in fee has a right to sell his land subject to any restrictions he may see fit to impose, provided that the restrictions are not contrary to public policy. Sheets v. Dillon, 221 N.C. 426, 431, 20 S.E.2d 344, 347 (1942). Such restrictions are often included as covenants in the deed conveying the property and may be classified as either personal covenants or real covenants that are said to run with the land. See 5 Richard R. Powell, Powell on Real Property ¶ 673 (1991) [hereinafter Powell on Real Property]. The significant distinction between these types of covenants is that a personal covenant creates a personal obligation or right enforceable at law only between the original covenanting parties, 5 Powell on Real Property ¶ 673[1], at 60-41, whereas a real covenant creates a servitude upon the land subject to the covenant (“the servient estate”) for the benefit of another parcel of land (“the dominant estate”), Cummings v. Dosam, Inc., 273 N.C. 28, 32, 159 S.E.2d 513, 517 (1968). As such, a real covenant may be enforced at law or in equity by the owner of the dominant estate against the owner of the servient estate, whether the owners are the original covenanting parties or successors in interest.

I. Real Covenants at Law

A restrictive covenant is a real covenant that runs with the land of the dominant and servient estates only if (1) the subject *300 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 benefits and the burdens of the covenant to run with the land. Raintree Corp. v. Rowe, 38 N.C. App. 664, 669, 248 S.E.2d 904, 908 (1978); 5 Powell on Real Property ¶ 673[1], at 60-43; 3 Herbert Thorndike Tiffany, The Law of Real Property §§ 848-854 (Basil Jones ed., 3d ed. 1939) [hereinafter Tiffany Real Property].

A. Touch and Concern

As noted by several courts and commentators, the touch and concern requirement is not capable of being reduced to an absolute test or precise definition. See Neponsit Property Owners Ass’n v. Emigrant Indus. Sav. Bank, 278 N.Y. 248, 256-58, 15 N.E.2d 793, 795-96, reh’g denied, 278 N.Y. 704, 16 N.E.2d 852 (1938); Charles E. Clark, Real Covenants and Other Interests Which "Run With Land” 96 (2d ed. 1947) [hereinafter Clark, Real Covenants], Focusing on the nature of the burdens and benefits created by a covenant, the court must exercise its best judgment to determine whether the covenant is related to the covenanting parties’ ownership interests in their land. Clark, Real Covenants 97.

For a covenant to touch and concern the land, it is not necessary that the covenant have a physical effect on the land. Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 624 (Utah 1989). It is sufficient that the covenant have some economic impact on the parties’ ownership rights by, for example, enhancing the value of the dominant estate and decreasing the value of the servient estate. 7 George W. Thompson, Commentaries on the Modern Law of Real Property § 3155, at 84 (1962) [hereinafter Thompson on Real Property], It is essential, however, that the covenant in some way affect the legal rights of the covenanting parties as landowners. Where the burdens and benefits created by the covenant are of such a nature that they may exist independently from the parties’ ownership interests in land, the covenant does not touch and concern the land and will not run with the land. See Choisser v. Eyman, 22 Ariz. App. 587, 529 P.2d 741 (1974) (covenant capable of enforcement regardless of status as owner of interest in land is personal in nature); Flying Diamond Oil Corp., 776 P.2d at 623 (Utah) (“[T]o touch and concern the land, a covenant must bear upon the use and enjoyment of the land and be of the kind that *301 the owner of an estate or interest in land may make because of his ownership right.”).

Although not alone determinative of the issue, the nature of the restrictive covenants at issue in this case (building or use restrictions) is strong evidence that the covenants touch and concern the dominant and servient estates. As recognized by some courts, a restriction limiting the use of land clearly touches and concerns the estate burdened with the covenant because it restricts the owner’s use and enjoyment of the property and thus affects the value of the property. Net Realty Holding Trust v. Franconia Properties, 544 F. Supp. 759, 762 (E.D. Va. 1982); see also 20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 167 (1965). A use restriction does not, however, always touch and concern the dominant estate. See Stegall v. Housing Authority, 278 N.C. 95, 178 S.E.2d 824 (1971) (holding that covenant did not meet the touch and concern requirement where the record failed to disclose the location of the grantor’s property “in the area” or the distance from the grantor’s property to the restricted property). To meet the requirement that the covenant touch and concern the dominant estate, it must be shown that the covenant somehow affects the dominant estate by, for example, increasing the value of the dominant estate..

In the case at bar, plaintiffs have shown that the covenants sought to be enforced touch and concern not only the servient estate owned by defendants, but also the properties owned by plaintiffs. The properties owned by defendants, plaintiff Williams, and plaintiffs Runyon comprise only a portion of what was at one time a four-acre tract bounded on one side by the Pamlico Sound and on the other by Silver Lake. If able to enforce the covenants against defendants, plaintiffs would be able to restrict the use of defendants’ property to uses that accord with the restrictive covenants. Considering the close proximity of the lands involved here and the relatively secluded nature of the area where the properties are located, we conclude that the right to restrict the use of defendants’ property would affect plaintiffs’ ownership interests in the property owned by them, and therefore the covenants touch and concern their lands.

B. Privity of Estate

In order to enforce a restrictive covenant as one running with the land at law, the party seeking to enforce the covenant must *302 also show that he is in privity of estate with the party against whom he seeks to enforce the covenant. 5 Powell on Real Property ¶ 673[2]; 7 Thompson on Real Property § 3155, at 84. Although the origin of privity of estate is not certain, the privity requirement has been described as a substitute for privity of contract, which exists between the original covenanting parties and which is ordinarily required to enforce a contractual promise. 3 Tiffany Real Property § 851, at 451 n.32. Thus, where the covenant is sought to be enforced by someone not a party to the covenant or against someone not a party to the covenant, the party seeking to enforce the covenant must show that he has a sufficient legal relationship with the party against whom enforcement is sought to be entitled to enforce the covenant.

For the enforcement at law of a covenant running with the land, most states require two types of privity: (1) privity of estate between the covenantor and covenantee at the time the covenant was created (“horizontal privity”), and (2) privity of estate between the covenanting parties and their successors in interest (“vertical privity”). William B. Stoebuck, Running Covenants: An Analytical Primer, 52 Wash. L. Rev. 861, 867 (1977) [hereinafter Stoebuck, 52 Wash. L. Rev. 861]. The majority of jurisdictions have held that horizontal privity exists when the original covenanting parties make their covenant in connection with the conveyance of an estate in land from one of the parties to the other. 7 Thompson on Real Property § 3155, at 85, and cases cited therein. A few courts, on the other hand, have dispensed with the showing of horizontal privity altogether, requiring only a showing of vertical privity. See, e.g., Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240, 164 N.E.2d 832, 196 N.Y.S.2d 945 (1959) (vertical privity sufficient); but see Eagle Enters. v. Gross, 39 N.Y.2d 505, 349 N.E.2d 816, 384 N.Y.S.2d 717 (1976) (referring to vertical privity as meeting horizontal privity requirement).

Vertical privity, which is ordinarily required to enforce a real covenant at law, requires a showing of succession in interest between the original covenanting parties and the current owners of the dominant and servient estates. As one scholar has noted:

The most obvious implication of this principle [of vertical privity] is that the burden of a real covenant may be enforced against remote parties only when they have succeeded to the covenantor’s estate in land. Such parties stand in privity of *303 estate with the covenantor. Likewise, the benefit may be enforced by remote parties only when they have succeeded to the covenantee’s estate. They are in privity of estate with the covenantee.

Stoebuck, 52 Wash. L. Rev. 861, 876 (emphasis added).

We adhere to the rule that a party seeking to enforce a covenant as one running with the land at law must show the presence of both horizontal and vertical privity. In order to show horizontal privity, it is only necessary that a party seeking to enforce the covenant show that there was some “connection of interest” between the original covenanting parties, such as, here, the conveyance of an estate in land. Accord Restatement of Property § 534 (1944).

In the case sub judice, plaintiffs have shown the existence of horizontal privity. The record shows that the covenants at issue in this case were created in connection with the transfer of an estate in fee of property then owned by Mrs. Gaskins. By accepting the deed of conveyance, defendants’ predecessors in title, the Brughs, covenanted to use the property for the purposes specified in the deed and thereby granted to Mrs. Gaskins a servitude in their property.

To review the sufficiency of vertical privity in this case, it is necessary to examine three distinct relationships: (1) the relationship between defendants and the Brughs as the covenantors; (2) the relationship between plaintiff Williams and the covenantee, Mrs. Gaskins; and (3) the relationship between plaintiffs Runyon and Mrs. Gaskins. The evidence before us shows that the Brughs conveyed all of their interest in the restricted property and that by mesne conveyances defendant Warren Paley succeeded to a fee simple estate in the property. Thus, he is in privity of estate with the covenantors. Any legal interests held by the other defendants were acquired by them from defendant Warren Paley. As successors to the interest held by defendant Warren Paley, they too are in privity of estate with the covenantors. Plaintiff Williams has also established a privity of estate between herself and the covenantee. Following the death of Mrs. Gaskins, the property retained by Mrs. Gaskins was conveyed by her heirs to her daughter, Eleanor Gaskins. Thereafter, Eleanor Gaskins conveyed to plaintiff Williams a fee simple absolute in that property. The mere fact that defendants and plaintiff Williams did not acquire the property directly from the original covenanting parties is of no moment. *304 Regardless of the number of conveyances that transpired, defendants and plaintiff Williams have succeeded to the estates then held by the covenantor and covenantee, and thus they are in vertical privity with their successors in interest. Such would be true even if the parties had succeeded to only a part of the land burdened and benefitted by the covenants. 5 Powell on Real Property ¶ 673[3], at 60-85 to -86; 5 Restatement of Property §§ 536, 551 (1944). Plaintiffs Runyon have not, however, made a sufficient showing of vertical privity. The Runyons have not succeeded in any interest in land held by Mrs. Gaskins at the time the covenant was created. The only interest in land held by the Runyons was acquired by them prior to the creation of the covenant. Therefore, they have not shown vertical privity of estate between themselves and the covenantee with respect to the property at issue in this case. Because the Runyons were not parties to the covenant and are not in privity with the original parties, they may not enforce the covenant as a real covenant running with the land at law.

C. Intent of the Parties

Defendants argue that plaintiff Williams is precluded from enforcing the restrictive covenants because the covenanting parties who created the restrictions intended that the restrictions be enforceable only by Mrs. Gaskins, the original covenantee. According to defendants, such a conclusion is necessitated where, as here, the instrument creating the covenants does not expressly state that persons other than the covenantee may enforce the covenants. We disagree.

Defendants correctly note that our law does not favor restrictions on the use of real property. It is generally stated that “[restrictions in a deed will be regarded as for the personal benefit of the grantor unless a contrary intention appears, and the burden of showing that they constitute covenants running with the land is upon the party claiming the benefit of the restriction.” Stegall, 278 N.C. at 101, 178 S.E.2d at 828. This, however, does not mean that we will always regard a restriction as personal to the covenantee unless the restriction expressly states that persons other than the covenantee may enforce the covenant. See, e.g., Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360 (1957) (concluding that covenant was intended to benefit land despite the absence of an express statement to that effect).

*305 “Whether restrictions imposed upon land . . . create a personal obligation or impose a servitude upon the land enforceable by subsequent purchasers [of the covenantee’s property] is determined by the intention of the parties at the time the deed containing the restriction was delivered.” Stegall, 278 N.C. at 100, 178 S.E.2d at 828; Reed, 246 N.C. at 224, 98 S.E.2d at 362. The question of the parties’ intention is one that the court must decide by applying our well-established principles of contract construction.

Our case law, as well as that of other jurisdictions, has been less than clear in delineating who should decide the issue of the parties’ intent. Some courts have stated that the parties’ intent is a question of fact that should be decided by a jury. See Gallagher v. Bell, 69 Md. App. 199, 212, 516 A.2d 1028, 1035 (1986), cert. denied, 308 Md. 382, 519 A.2d 1283 (1987). Other courts, including our Court of Appeals, have expressed the view that the parties’ intention with respect to the terms of a deed is a question of law for the court’s consideration. See Mason-Reel v. Simpson, 100 N.C. App. 651, 397 S.E.2d 755 (1990). We believe that the correct view is that the effect to be given unambiguous language contained in a written instrument is a question of law, Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973), but where the language is ambiguous so that the effect of the instrument must be determined by resort to extrinsic evidence that raises a dispute as to the parties’ intention, the question of the parties’ intention becomes one of fact. However, the determination of the parties’ intention is not for the jury ,but is the responsibility of the judge in construing and interpreting the meaning of the instrument. 4 Samuel Williston, A Treatise on the Law of Contracts § 601 (Walter H.E. Jaeger ed., 3d ed. 1961 & Supp. 1991); see also N.C.G.S. § 39-1.1 (1984).

Ordinarily, the parties’ intent must be ascertained from the deed or other instrument creating the restriction. Stegall, 278 N.C. at 100, 178 S.E.2d at 828. However, when the language used in the instrument is ambiguous, the court, in determining the parties’ intention, must look to the language of the instrument, the nature of the restriction, the situation of the parties, and the circumstances surrounding their transaction. Id.; Reed, 246 N.C. at 224, 98 S.E.2d at 362; Monk v. Kornegay, 224 N.C. 194, 200, 29 S.E.2d 754, 758 (1944).

We conclude that the language of the deed creating the restrictions at issue here is ambiguous with regard to the intended enforcement of the restrictions. The deed from Mrs. Gaskins to the *306 Brughs provided that the property conveyed was being made “subject to certain restrictions as to the use thereof, running with said land by whomsoever owned, until removed [due to a change of conditions in the surrounding properties] as herein set out.” As noted by the dissent in the Court of Appeals, this provision unequivocally expresses the parties’ intention that the burden of the restrictions runs with the land conveyed by the deed. 2 Runyon v. Paley, 103 N.C. App. 208, 215, 405 S.E.2d 216, 220 (1991) (Greene, J., concurring in part and dissenting in part). In the habendum clause of the deed, the parties also included language providing that the estate granted shall be “subject always to the restrictions as to use as hereinabove set out.” (Emphasis added.) We conclude that the language of the deed creating the restrictions is such that it can reasonably be interpreted to establish an intent on the part of the covenanting parties not only to bind successors to the covenantor’s interest, but also to benefit the property retained by the covenantee.

Having determined that the instrument creating the restrictions at issue here is ambiguous as to the parties’ intention that the benefit of the covenants runs with the land, we must determine whether plaintiff Williams has produced sufficient evidence to show that the covenanting parties intended that the covenants be enforceable by the covenantee’s successors in interest. Defendants argue that plaintiff Williams has not met her burden because (1) the covenants do not expressly state that the benefit of the covenant was to run with any land retained by the covenantee; and *307 (2) plaintiff Williams has not shown that the property was conveyed as part of a general plan of subdivision, development, and sales subject to uniform restrictions. While evidence of the foregoing would clearly establish the parties’ intent to benefit the covenantee’s successors, such evidence is not the only evidence that may be used to prove the parties’ intent.

We find strong evidence in the record of this case to suggest that the covenanting parties intended the restrictive covenants to be real covenants, the benefit of which attached to the land retained by Mrs. Gaskins, the covenantee. The covenants at issue here are building and use restrictions that restrict the use of the burdened property to “two residences and such outbuildings as are appurtenant thereto” to be used for “residential purposes.” The covenants expressly prohibit the use of the property for “business, manufacturing, commercial or apartment house purposes.” The only exception provided by the covenants is that the latter restriction “shall not apply to churches or to the office of a professional man which is located in his residence.” As noted by some courts, restrictions limiting the use of property to residential purposes have a significant impact on the value of neighboring land, and thus the very nature of such a restriction suggests that the parties intended that the restriction benefit land rather than the covenantee personally. See, e.g., Bauby v. Krasow, 107 Conn. 109, 115, 139 A. 508, 510 (1927) (concluding that only reasonable inference to be drawn from use restriction “is that its sole purpose was to protect the [covenantee’s] homestead”); accord Elliston v. Reacher, 2 Ch. 374, aff’d, 2 Ch. 665 (1908). We need not decide whether the nature of a building or use restriction, in and of itself, is sufficient evidence of the parties’ intent that the benefit run with the land, however.

In this case, the evidence also shows that the property now owned by defendants was once part of a larger, relatively secluded tract bounded by Silver Lake and the Pamlico Sound. Prior to conveying the property now owned by defendants, Mrs. Gaskins had erected on a portion of the tract a single-family residence in which she lived. At some point, her property was subdivided into several lots. Mrs. Gaskins conveyed several of these lots, on which residences were thereafter erected. Although none of these deeds of conveyance contained restrictions limiting the use of the property to residential purposes, it is reasonable to assume that Mrs. Gaskins, by later restricting the use of defendants’ property, *308 intended to preserve the residential character and value of the relatively secluded area. This evidence is further supported by the fact that Mrs. Gaskins retained land across the road from the property now owned by defendants and continued to reside in her dwelling located on the retained land. We believe that this evidence of the parties’ situation and of the circumstances surrounding their transaction strongly supports a finding that the covenanting parties intended that the restrictive covenants inure to the benefit of Mrs. Gaskins’ land and not merely to Mrs. Gaskins personally.

Moreover, we conclude that the language of the deed creating the restrictive covenants supports a finding that the parties intended the benefit of the covenants to attach to the real property retained by Mrs. Gaskins. The pertinent language of the deed provides that the property was conveyed subject to certain use restrictions “running with said land by whomsoever owned, until removed,” and that the property is “subject always to the restrictions.” As the Connecticut Appellate Court concluded after analyzing similar language in Grady v. Schmitz, 16 Conn. App. 292, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988), we believe that this language suggests a broad, rather than a limited, scope of enforcement. That the deed expressly stated that the covenants were to run with the land and continue indefinitely, unless and until the surrounding property is “turned to commercial use,” indicates that the parties intended the restrictive covenants to be enforceable by Mrs. Gaskins as the owner of the land retained by her or by her successors in interest to the retained land. See Grady, 16 Conn. App. at 297, 547 A.2d at 566.

Having reviewed the language of the deed creating the restrictive covenants, the nature of the covenants, and the evidence concerning the covenanting parties’ situation and the circumstances surrounding their transaction, we conclude that plaintiff Williams presented ample evidence establishing that the parties intended that the restrictive covenants be enforceable by the owner of the property retained by Mrs. Gaskins and now owned by plaintiff Williams. Defendants did not offer any contrary evidence of the parties’ intent but relied solely upon the theory that plaintiff Williams could not enforce the restrictions because the covenants did not expressly state the parties’ intent and because plaintiff Williams had failed to show that the covenants were created as part of a common scheme of development. Based upon the uncontradicted *309 evidence presented by plaintiff Williams, the trial court erred in concluding that plaintiff Williams, the successor in interest to the property retained by Mrs. Gaskins, was not entitled to enforce the restrictive covenants against defendants.

II. Equitable Servitudes

With regard to plaintiffs Runyon, we must go further because, in certain circumstances, a party unable to enforce a restrictive covenant as a real covenant running with the land may nevertheless be able to enforce the covenant as an equitable servitude. Although damages for breach of a restrictive covenant are available only when the covenant is shown to run with the land at law, “performance of a covenant will be decreed in favor of persons claiming under the parties to the agreement or by virtue of their relationship thereto, notwithstanding the technical character and form of the covenant.” 20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 26, at 596 (1965) (emphasis added). To enforce a restriction in equity, it is immaterial that the covenant does not run with the land or that privity of estate is absent. Bauby, 107 Conn. 109, 139 A. 508; Johnson v. Robertson, 156 Iowa 64, 135 N.W. 585 (1912).

“A covenant, though in gross at law, may nevertheless be binding in equity, even to the extent of fastening a servitude or easement on real property, or of securing to the owner of one parcel of land a privilege, or, as it is sometimes called, ‘a right to an amenity’ in the use of an adjoining parcel, by which his own estate may be enhanced in value or rendered more agreeable as a place of residence.”

Johnson, 156 Iowa at 77, 135 N.W. at 590 (quoting Parker v. Nightingale, 88 Mass. (6 Allen) 341, 344 (1863)).

In this case, plaintiffs seek injunctive relief, which is available for the breach of an equitable servitude. Therefore, we now examine the question of whether plaintiffs Runyon, although unable to enforce the covenants as covenants running with the land, may nevertheless enforce the covenants against defendants on the theory of equitable servitudes.

“Even though a promise is unenforceable as a covenant at law because of failure to meet one of the requirements, the promise may be enforced as an equitable servitude against the promisor or a subsequent taker who acquired the land with notice of the restrictions on it.” Traficante v. Pope, 115 N.H. 356, 359, 341 A.2d *310 782, 784 (1975). In order to enforce a restrictive covenant on the theory of equitable servitude, it must be shown (1) that the covenant touches and concerns the land, and (2) that the original covenanting parties intended the covenant to bind the person against whom enforcement is sought and to benefit the person seeking to enforce the covenant. 5 Powell on Real Property ¶ 673[1], at 60-44.

A. Touch and Concern

Whether a covenant is of such a character that it touches and concerns land is determined according to the same principles applicable to real covenants running at law. Unlike with real covenants, however, it is not always necessary to show that both the burden and the benefit touch and concern land. To enforce a restrictive covenant as an equitable servitude, it is only necessary to show that the covenant is of such a nature as to bind the party sued and to be enforceable by the party suing. The covenant itself establishes these rights and obligations between the original covenanting parties as well as any named parties intended to be benefited thereby. Thus, the touch and concern element need only be established where the covenant is sought to be enforced either by or against successors in interest to the original or named parties to the covenant. Where, for example, a covenantee or a named beneficiary seeks to enforce the restriction against the covenantor’s successor in interest, the party seeking enforcement need not show that the benefit touches and concerns his land but need show only that the burden touches and concerns the land of the party against whom he seeks to enforce the restriction. See Bauby, 107 Conn. 109, 139 A. 508. 3 Similarly, a successor in interest to the *311 covenantee or to a named beneficiary who seeks to enforce the restriction against the original covenantor must show only that the benefit of the restriction touches and concerns the successor’s land. Where, however, the covenant is sought to be enforced by and against parties neither of whom were the covenanting parties or named beneficiaries, the party seeking to enforce the restriction must show that the covenant touches and concerns the land of both.

Plaintiffs Runyon have shown that the covenants at issue here meet the legal requirement that the covenants touch and concern defendants’ property as well as the property owned by the Runyons. Because a covenant that touches and concerns the land at law will also touch and concern the land in equity, we need not further examine this requirement.

B. Intent of the Parties

A party who seeks to enforce a covenant as an equitable servitude against one who was not an original party to the covenant must show that the original covenanting parties intended that the covenant bind the party against whom enforcement is sought. To meet this requirement, the party seeking to enforce the covenant must show that the covenanting parties intended that the burden run to successors in interest of the covenantor’s land.

If the party seeking enforcement was not an original party to the covenant, he must show that the covenanting parties intended that he be able to enforce the restriction. Maurice T. Brunner, Annotation, Comment Note. — Who May Enforce Restricti