Positive covenants—binding successors in title
Positive covenants—binding successors in title

The following Property practice note provides comprehensive and up to date legal information covering:

  • Positive covenants—binding successors in title
  • Dealing with the problem
  • Chain of indemnity covenants
  • Renewed direct covenants
  • A right of entry annexed to an estate rentcharge
  • Less commonly used methods
  • A right of re-entry
  • Enlargement of a long lease
  • Common law 'benefit and burden' principle
  • No reversal of benefit and burden principle
  • More...

A covenant is a form of contract. Under the doctrine of privity of contract the rights and liabilities created by a contract will bind the parties to it but no-one else. However in the case of a covenant over land, property law may allow it to be enforced by and against persons other than the original parties:

  1. in most cases the benefit of a restrictive covenant and a positive covenant will benefit successors in title by 'running with the land' both in common law and in equity

  2. subject to certain requirements the burden of a restrictive covenant will run with the land in equity only, but

  3. the burden of a positive covenant will not run with the land in any circumstances

The fact that positive covenants do not run with the land is a serious deficiency in English property law. It is not possible to bind successors in title to a positive obligation of even the most straightforward kind (ie to maintain a boundary or a shared roof).

A further problem under privity of contract is that a party who has made a positive covenant remains bound by it even after they have disposed of the relevant property.

Dealing with the problem

There are a number of ways of dealing with the problem of positive covenants, but these can be complex and are not necessarily fully effective. Those

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