## Facts

- A religious order owned a 34.5-acre tract served by a private road and later conveyed most of the tract to developers (the Bells) for subdivision and development, while retaining and then selling a separate half-acre parcel containing an eighteenth-century tenant house to the Gallaghers.
- In 1961, the Gallaghers and the Bells executed a written agreement addressing access and future subdivision improvements.
- The agreement provided that the Gallaghers would (1) dedicate portions of their parcel for public streets bordering their property and (2) pay a pro rata share of the costs of installing those streets and certain utilities.
- In exchange, the Bells granted the Gallaghers access rights tied to the planned subdivision streets (with interim access via the existing private road).
- The agreement stated the Gallaghers’ obligations were undertaken for themselves and their “heirs and assigns.”
- The Gallaghers sold the half-acre parcel in 1980, before any subdivision streets or utilities were installed.
- After the successor owner refused to pay, the Bells sought to recover the unpaid pro rata share from the Gallaghers.

## Issues

1. Whether the 1961 promise to dedicate land and pay a pro rata share of subdivision street and utility costs was a real covenant running with the land or a purely personal obligation of the Gallaghers.
2. Whether the trial court erred by submitting the “runs with the land” classification to the jury as a factual question rather than deciding it as a matter of law.
3. Whether the covenant satisfied Maryland requirements for a real covenant, including intent, touch and concern, and privity of estate.

## Decision

- The appellate court held that classification of the written covenant as running with the land was a question of law on undisputed facts.
- The court concluded the 1961 covenant was a real covenant running with the land, not merely a personal promise of the Gallaghers.
- The court reversed the judgment entered against the Gallaghers based on the jury’s determination and remanded for further proceedings consistent with treating the obligation as running with the land.

## Legal Principles

- Whether a covenant runs with the land is ordinarily a legal question when the covenant is written and the material circumstances are not genuinely disputed.
- A covenant runs with the land when (1) the parties intended it to bind successors, (2) it touches and concerns the land by affecting its use, value, or enjoyment, and (3) the necessary privity of estate exists.
- An agreement to dedicate part of a parcel for streets and to contribute proportionally to street and utility installation costs touches and concerns the land because it alters the parcel’s physical configuration and allocates burdens tied to benefits of access and services.
- Express language binding “heirs and assigns,” coupled with a subdivision-development context, supports an intent that both burdens and benefits attach to the land rather than to a particular owner.

## Conclusion

The court treated the subdivision cost-sharing and dedication agreement as a real covenant running with the land and held that, on undisputed facts, a court—not a jury—must determine whether such a written covenant runs with the land under Maryland law.


Gallagher v. Bell, 69 Md. App. 199, 516 A.2d 1028 (Ct. Spec. App. 1986)