Where a piece of land is conveyed from the transferor to the transferee and by drafting error, the transfer document executed by the parties and subsequently registered at the HM Land Registry shows the positive covenant reversed to an obligation upon the transferor who no longer owns the land, would this fall under the doctrine of mutual mistake?

The parties have agreed in the present case that the transferee will perform certain Covenants. This Q&A is not concerned with the extent to which such obligations bind third parties. The burden of a Positive covenant runs with the land in far more limited circumstances than the burden of one which is negative and which restricts the use to which the land can be put.

In the present case, the transfer which purported to record the parties’ agreement appears by some oversight not to have done so. It has placed the positive obligations on the transferor rather than the transferee.

There does not appear to have been a Mistake on the part of the parties which might vitiate their agreement. They were agreed as