Colorado § 38-30-121 - What covenants run with the land.

§ 38-30-121. What covenants run with the land.

Covenants of seisin, peaceable possession, freedom from encumbrances, and warranty contained in any conveyance of real estate, or any interest therein, shall run with the premises and inure to the benefit of all subsequent purchasers and encumbrancers.

Source: R.S. p. 107, § 10. G.L. § 169. G.S. § 207. R.S. 08: § 678. C.L. § 4886. CSA: C. 40, § 18. CRS 53: § 118-1-21. C.R.S. 1963: § 118-1-21.

ANNOTATION

Law reviews. For article, "Measure of Damages for the Breach of the Covenants of Quiet Enjoyment and Warranty", see 13 Dicta 278 (1936). For comment, "Implied Warranties in the Sale of Real Estate in Colorado: Rational Boundaries of the Doctrine", see 53 U. Colo. L. Rev. 137 (1981). For article, "Implied Covenants in Oil and Gas Leases", see 12 Colo. Law. 1803 (1983). For article, "Buyers and Brokers Beware: The Contract-Deeding Trap for the Unwary", see 45 Colo. Law. 49 (Mar. 2016).

Only last covenantee in possession can sue for breach. Where land conveyed with real covenants has passed by subsequent conveyances through the hands of various convenantees, only the last covenantee in whose possession the land is when the covenant is broken can sue for its breach, and his right of action extends to any or to all of the prior covenantors. Western Dev. & Realization Corp. v. Hext, 108 Colo. 312, 117 P.2d 313 (1941).

Accrual of cause of action depends upon time of breach; and the time of breach varies with the particular covenant. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

Covenant of seisin is broken, if at all, when it is made. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

Covenant of seisin and covenant of right to convey synonymous. The covenant of right to convey is practically synonymous with the covenant of seisin. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

Covenant of title. The covenant of seisin is regarded in legal effect as a covenant of title as well as a covenant of possession. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

Covenant against encumbrances runs with the land and inures to the benefit of subsequent purchasers. Wheeler v. Roley, 105 Colo. 116, 95 P.2d 2 (1939).

Covenant against encumbrances is not restricted to instances where there is an adverse claim of title, but applies when a house is sold with an existing zoning violation that eventually results in the revocation of the certificate allowing occupancy. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

A requirement that existed at time of conveyance that a garage be built to conform to zoning laws constituted an encumbrance. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

Covenant of warranty is broken when covenantee suffers eviction. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

What constitutes eviction. The requirement of eviction for breach of covenant of warranty is satisfied when the convenantee is unable to obtain possession by reason of possession by a third person having a paramount title which existed at the time of the conveyance or because of the refusal of one in actual possession to surrender the premises to the covenantee. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765 (1962).

Right of recovery unaffected by grantee's knowledge of defective title. Even though a grantee knows at the time of conveyance that his grantor's title is defective or that the grantor had no title to part of the land, it does not generally affect the grantee's right of recovery for a breach of warranty, but this, however, does not prevent a grantee from being estopped to assert his claim. Reinhardt v. Meyer, 153 Colo. 296, 385 P.2d 597 (1963).

Grantee with no loss has no action. The grantee of real property who has not, and will not, sustain any loss or damage by the breach of grantor's covenant to pay taxes on the property conveyed, has no cause of action for recovery of the amount of taxes assessed against the property. W.n Dev. & Realization Corp. v. Hext, 108 Colo. 312, 117 P.2d 313 (1941).

When restrictive covenants deemed controlling. Restrictive residential covenants are controlling where they require a more restrictive use of the land than is permitted under zoning requirements. Lidke v. Martin, 31 Colo. App. 40, 500 P.2d 1184 (1972).

Applied in Stone v. Rozich, 88 Colo. 399, 297 P. 999 (1931).