Party Wall Agreements as Real Covenants

Abstract

Amid a field of law of peculiar interest to the student be- cause of its confusion both of history and of policy--that of covenants running with the land--the subject of party wall covenants seems especially attractive. Here we have a form of covenant which has appealed to most courts as a sensible and desirable arrangement for the use and development of realty. Yet current legal theory is against the validity of such an agree- ment as a running covenant, passing with the conveyance of the land. As might be expected, the courts tend to follow their natural instincts, such covenants are being more and more generally upheld, and legal theory is left to stew in the difficulties of its own concocting. It is proposed herein to reexamine the problem, with a view of testing the soundness of such legal theory and of determining whether current judicial practice does violate the policy of applicable and analogous legal rules. The cases on the subject were carefully collected and analyzed some years ago by Professor Ralph W. Aigler in a learned and excellent article, and hence we need not repeat that task but may confine ourselves to a consideration of the principles thought to underlie the problem.