Is a release or indemnity agreement binding on subsequent future owners of the property?

This typically depends on whether the release or indemnity agreements are covenant that run with the land.  A covenant runs with the land and binds subsequent owners when it:

  • Touches and concerns the land;
  • Relates to a thing in existence, or specifically binds the parties and their assigns;
  • Is intended by the original parties to run with the land; and
  • When the successor to the burden has notice.  

However, cases which have applied this test to releases and indemnity agreements are typically only concerned with whether the clause “touches and concerns the land.”

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