Positive covenants

Positive covenants

A ‘positive covenant’ is a promise to do something or to spend money. Common examples include a covenant:

•
to build and maintain a fence
•
to contribute to the maintenance of a shared driveway, or
•
to repair a shared roof

Unlike ‘negative’ or ‘restrictive’ covenants, the burden of a positive covenant does not ‘run’ with the land and so the promise cannot be enforced against subsequent owners or occupiers without structuring the transaction as a lease or by using one of the 'conveyancing devices’ (see below) developed for that purpose, see Practice Note: Positive covenants—binding successors in title and Checklists: Positive covenants in transfers—protecting positive obligations—checklist and Due diligence—positive covenants—checklist.

The 'conveyancing devices'

The most commonly used devices for making the burden of a positive covenant ‘run’ with the land are:

•
compulsorily renewed covenants - the most effective and commonly employed method is to require the original maker of the promise to obtain on any sale of its property a new covenant in favour of the covenantee (ie the person with the benefit of the covenant). This approach results in a new covenant directly enforceable

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