Q&As

Where a positive covenant is not expressed to benefit any land, is it a personal covenant with the other party to the deed? For example, where it does not refer to successors-in-title, but the restrictive covenants in the same deed are expressed to benefit the covenantor’s successors-in-title.

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Published on LexisPSL on 12/01/2021

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Where a positive covenant is not expressed to benefit any land, is it a personal covenant with the other party to the deed? For example, where it does not refer to successors-in-title, but the restrictive covenants in the same deed are expressed to benefit the covenantor’s successors-in-title.

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 but, in relation to a covenant over land, property law may allow it to be enforced by and against persons other than the original parties. In most cases, the benefit of a positive covenant will benefit successors in title by ‘running with the land’ both in common law and in equity. The burden of a positive covenant will not run with the land in any circumstances even where the obligation is of the most straightforward kind (ie to maintain a boundary or a shared roof), see: Rhone v Stephens. There are various mechanisms commonly used to ensure that the burden of a positive covenant runs with the land and is enforceable against successors-in-title, see Practice Note: Positive covenants—binding successors in title.

This Q&A relates to the benefit of a positive covenant running with the land where the covenant:

  1. does not refer to successors-in-title, and

  2. is not expressed to benefit any land

The usual wording of a positive covenant will be something along the lines of:

‘…the [Transferee] [Transferor] covenants with the [Transferor] [Transferee], for the benefit of the [Transferor’s Retained Land] [Property] and each and every part of it, with the intention of binding the [Property] [Transferor’s Retained Land] and each and

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