Q&As

The original buyer of a property, X, entered into positive covenants to maintain a wall. On selling the property, X obtained from its buyer, Y, a covenant by way of indemnity to observe and perform those covenants. Is there a risk that X could incur liability in tort for an injury caused as a result of a failure to maintain the wall even though X no longer has any right of access to the property?

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Produced in partnership with Kate Andrews of Hamlins
Published on LexisPSL on 26/03/2019

The following Property Q&A produced in partnership with Kate Andrews of Hamlins provides comprehensive and up to date legal information covering:

  • The original buyer of a property, X, entered into positive covenants to maintain a wall. On selling the property, X obtained from its buyer, Y, a covenant by way of indemnity to observe and perform those covenants. Is there a risk that X could incur liability in tort for an injury caused as a result of a failure to maintain the wall even though X no longer has any right of access to the property?
  • Positive covenants
  • Tort of negligence

It is assumed that the covenant is just for the benefit of the neighbouring land owner.

Positive covenants

A covenant is a contract. In the case of covenants, the rights and liabilities created by the contract may be enforced by and against persons other than the original parties to the contract (see Practice Note: Positive covenants—binding successors in title). It is assumed that the positive covenant that X has entered into, is entered into with the land owner of the neighbouring land, benefitting the neighbouring land. A positive covenant, like the one that X has entered, will never run with the land. This means that it is not possible to bind successors in title to positive obligations (see Rhone v Stephens). If the owner of the benefitting land wishes to bring a claim, X remains bound by this positive covenant to maintain the fence even though they have sold the property (see: Positive covenants—overview).

Although X has sold the property, they have obtained an indemnity from the new owner, Y, whereby Y covenants to observe and perform the original positive covenant of maintaining the wall. X is likely hoping to start a chain of indemnity covenants. A chain of indemnity occurs when someone who gives a positive covenant, in seeking to avoid ongoing liability under the covenant, obtains another covenant from the immediate successor in title, to

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