미국 재산법상 토지사용 제한 특약에서의 물권적 상호 관계에 관한 소고

Today, many Korean enterprises and individuals engage themselves in transactions of real property in the United States. Successful investment in land requires understanding of peculiar real property systems in the United States. The purpose of this note is to introduce the concept of privity of estate. In general, real covenants are created to increase or maintain the value of the dominant tenement. By creating a covenant, the covenantor becomes obligated to do or not to do certain acts on his parcel of land. The question is whether the burden or benefit under the covenant runs to a third party to whom the estate in land has been conveyed by the original party. A covenant can be assigned to a successor of interest in land if the original parties intended so, the third party had notice of the covenant, the covenant touches and concerns the land, and there is privity of estate. Privity of estate refers to a horizontal privity or a vertical privity. In general, the horizontal privity exists between the landlord and tenant, the grantor and grantee, and the holder of an easement and the servient land owner. On the other hand, if the original party to the covenant conveys his/her entire estate in land to a successor, the vertical privity exists between the original party and the successor, and the burden runs to the successor. If the original party conveys less estate than he/she has, the horizontal privity does not exist between the parties, and the burden does not run to the successor. However, the benefit runs to the successor to whom less estate has been conveyed.