## Facts

- Alfred and Mary Schaer owned adjacent parcels in Alexandria, Virginia: Lot 38 (with a residence) and Lot 39 (vacant).
- The residence on Lot 38 encroached onto Lot 39 by about one inch.
- In 1995, the Schaers agreed to sell Lot 38 to Girard C. Miller and others; the contract required (i) an access right over Lot 39 to maintain the Lot 38 dwelling and (ii) a restriction barring construction on Lot 39 within three feet of the Lot 38 dwelling.
- On June 30, 1995, the Schaers executed and recorded (i) a deed conveying Lot 38 to the Millers, (ii) a declaration restricting improvements on Lot 39 within three feet of the Lot 38 dwelling, and (iii) a declaration granting access over Lot 39 for maintenance of the Lot 38 dwelling.
- The restriction and easement instruments were executed by the Schaers and did not name the Millers as parties, but were recorded in the land records.
- In 1997, Sonoma Development, Inc. bought Lot 39 from the Schaers by a deed stating the conveyance was “subject to easements and restrictive covenants of record.”
- Sonoma built a house on Lot 39 about 2.5 feet from the Millers’ dwelling, violating the recorded three-foot setback.
- The Millers sued for injunctive relief to enforce the restriction and require removal of construction within the setback.

## Issues

1. Whether the recorded declaration created a valid common-law real covenant running with the land enforceable against a successor owner of the burdened parcel.
2. Whether horizontal privity exists when a restrictive covenant is executed in a separate recorded instrument, not naming the benefited grantee, but as part of the same transaction that conveys the benefited parcel.

## Decision

- The Supreme Court of Virginia affirmed the injunction enforcing the setback restriction.
- The Court held the declaration created a real covenant running with the land, enforceable by the Millers against Sonoma.
- Horizontal privity was satisfied because the restriction was executed as part of the same overall transaction in which the Schaers conveyed Lot 38 (the benefited parcel) to the Millers.
- The Court rejected the argument that horizontal privity required the restriction to be contained in the deed or to name the Millers as parties, so long as the covenant was part of an integrated land-transfer transaction.
- The Court upheld the order requiring Sonoma to remove all improvements within three feet of the Millers’ dwelling.

## Legal Principles

- A covenant runs with the land at common law when there is horizontal privity, vertical privity, intent that the burden and benefit run, the covenant touches and concerns the land, and the covenant is in writing.
- Horizontal privity exists when a restrictive covenant is made as part of a transaction that also includes the transfer of an interest in land that is either benefited or burdened by the covenant.
- Horizontal privity does not require the covenant to appear in the same instrument as the conveyance, nor that the benefited grantee be named as a party to the covenant instrument, if the covenant is part of the same transaction.
- A setback restriction regulating the location of improvements on one parcel for the benefit of an adjacent parcel touches and concerns the land and is enforceable against successors when properly recorded and intended to bind successors.

## Conclusion

Because the setback restriction was executed and recorded as part of the transaction conveying the benefited parcel to the Millers, the horizontal-privity requirement for a real covenant was met; the covenant ran with the land and was enforceable by injunction against Sonoma as a successor owner of the burdened parcel.


Sonoma Dev., Inc. v. Miller, 258 Va. 163, 515 S.E.2d 577 (1999)