A Tenant's Perspective on SNDAs: Non-Disturbance Is Not Enough

Part One of this article, last month, outlined the basic elements of a subordination, non-disturbance and attornment agreement (SNDA), which regulates two competing interests in the same property — tenant's right to possess its premises pursuant to its lease and mortgage lender's security interest in that same premises. Part Two explains the differences between the concepts of "non-disturbance" and "recognition," while contending that lease recognition is more important to the tenant than not having its possession disturbed.

Personal Covenants vs. Real Covenants

A covenant is simply an agreement. An in personam covenant binds the person who grants the covenant, whereas an in rem covenant binds a thing. Black's Law Dictionary indicates that "in personam" is a Latin phrase meaning "against a person" and that "in rem" is a Latin phrase meaning "against a thing." In personam, and In rem, Black's Law Dictionary (9th ed. 2009). In the real property context, in rem covenants are sometimes referred to as "real covenants" whereas in personam covenants are "personal covenants." A personal covenant only binds the person who makes the covenant and any successor who expressly assumes that covenant. In contrast, a real covenant binds the real property itself and is sometimes said to "run with the land." Any person who succeeds to the ownership of the property will also be bound to honor the real covenant, whether or not he or she expressly agrees to assume it, so long as he or she has actual or constructive notice of the covenant.