An artist and a baker each owned one-story buildings on adjacent lots on a common street. A common wall which was half on the land owned by the artist and half on the land owned by the baker was an integral part of both buildings. The artist and the baker each held a recorded easement on the land of the other which was under the wall. The baker desired to add a second story to her building, and the artist and the baker entered into a written party wall agreement (which was duly recorded), for themselves, their successors and assigns, whereby the baker was permitted to increase the party wall at her cost and the artist agreed to reimburse her one-half of the cost at such time as the artist extended his building to two stories. The artist then sold her lot to a cobbler, and the baker sold her lot to a dancer.
If the cobbler now decides to construct a second story on the building and the dancer sues him for half the original cost of the wall,
A. The cobbler will prevail because he is not in privity of contract with the dancer.
B. The cobbler will prevail because the artist’s agreement does not touch and concern the land.
C. The cobbler will prevail because the benefit of the baker’s contract is personal to him.
D. The dancer will prevail because both the benefit and the burden of the contract between the artist and the baker run with the land.
{ 8 comments… read them below or add one }
Answer D is correct. The agreement between the artist and the baker is a covenant in which the benefit and the burden run with the land. Historically, some cases held that any contract that only requires the payment of money cannot touch and concern the land. More modern cases hold that a contract to pay money that is intimately associated with the land will meet the touch and concern requirement. When the cobbler built on his property, he gained a benefit which was directly related to the land, and he clearly should be obligated to pay. While it can be argued that the baker should be the payee since he paid for the wall, it must also be noted that he conveyed the wall at the time he sold the lot to the dancer. Since the agreement bound the original parties, their successors and assigns, the right to payment also ran with the land. Since the better argument is that the touch and concern requirement is met, the covenant will run with the land.
Answer A is incorrect. This choice correctly states that the cobbler is not in privity of contract with the dancer, since they are not the original parties to the contract with respect to extending the party wall. However, it is incorrect because the dancer will prevail in this case because the original contract between the artist and the baker runs with the land and binds their successors. The fact that two parties are not in privity of contract does not mean that the contract is not enforceable against them as a covenant running with the land.
Answer B is incorrect. This answer is a close second choice. Some cases hold that any contract that only requires the payment of money cannot touch and concern the land. Other cases hold that a contract to pay money that is intimately associated with the land will meet the touch and concern requirement. When the cobbler built on to his property, he gained a benefit which was directly related to the land, and clearly should be obligated to pay someone. While it could be argued that the baker should be the payee since he paid for the wall, it also must be noted that he conveyed the wall at the time he sold the lot to the dancer. Since the agreement bound the original parties, their successors and assigns, the better argument is that the right to payment for the wall was intended to run with the land. Therefore, it will most likely be held that the touch and concern requirement is met and the covenant will run with the land.
Answer C is incorrect. The covenant runs with the land; it is not personal to the baker.
D.
I am testing to see whether its fixed. My answer is D
D.
Hmm…the comments section is showing up normally for me. Perhaps it was a problem earlier in the afternoon?
B:
d. im having trouble submitting my answer independent of others.
Yes me too! I can’t see my answer! I will go with D; both the burden and the benefit run with the land.