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

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

  • Positive covenants—binding successors in title
  • Dealing with the problem
  • Less commonly used methods
  • Interaction with easements—fencing easements
  • Proposals for reform

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 he has 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