Below is the abstract for “A Defense of Horizontal Privity in American Property Law,” available for download on SSRN.
Under the American common law of property, horizontal privity is required for covenants to run with the land – i.e., for covenants to bind future successors to the land. Put simply, horizontal privity refers to the required relationship between the two original covenanting parties. Essentially all scholars who have written on horizontal privity have attacked it ruthlessly (one commentator has called horizontal privity “pernicious”, for example) and/or have called for its abolition (see for example such calls echoed in the Third Restatement of Property – Servitudes). I take a different approach than the existing scholarly consensus and attempt to present a more balanced and nuanced view with two major aims: to show why many of the objections against horizontal privity are weak and to argue for why horizontal privity may be worth keeping.