Bank of America, N.A. v. Cannonball LLC

(Modified upon denial of rehearing 8/5/14.) Bank filed mortgage foreclosure complaint to enforce lending agreements with developer for construction of retail shopping center. Anchor store purchaser of tract in shopping center filed counterclaim seeking declaration that, per its agreements with developer, it had certain covenants that ran with land and were binding against bank. Covenants for tax reimbursement and lien rights do run with the land, pursuant to intent of developer and tract purchaser, and bind bank to explicit terms of pertinent recorded documents and sequence of recording documents. Covenants touch and concern the property as a matter of law, and bank's predecessor was aware of tract purchaser's rights when it entered into construction loan agreement with developer. As tract purchaser's rights were in effect before mortgage and run with land, they were not extinguished by foreclosure. (BURKE and HUDSON, concurring.)