Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Positive and Negative Covenants and the Transmission of Benefit and Burden to Successors in Title of the Original Contracting Parties

Document Cited authorities 23 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages241-243
Chapter 24


Positive and Negative Covenants and the Transmission of Benefit and Burden to Successors in Title of the Original Contracting Parties

THE DISTINCTION BETWEEN POSITIVE AND NEGATIVE COVENANTS

24.1 A positive covenant is one which requires the covenantor to pay money or do anything of an active nature. This might involve, for instance, the maintenance of fencing along a common boundary or a covenant to repair.1This contrasts with the position in the case of leasehold covenants which are enforceable against successors in title, provided: (a) in the case of leases granted before 1996,2there is privity of estate and the covenant touches and concerns the land; or (b) in the case of leases granted after 1996, the covenants are not expressed to be personal.

24.2 There are ways, some more effective than others, of overcoming the difficulty of enforcing the burden of positive covenants against successors of the original covenantor:

(a) Where the original covenantor (who remains liable on his personal covenant even after he has sold the land) enters into an obligation with his purchaser whereby the latter agrees to indemnify him against future breaches of covenant. A chain of such covenants is undesirable as the chain may easily be broken and the payment of damages may also be an inadequate remedy.3

(b) Where a covenantor agrees to compel his own successor: (i) to enter into a direct covenant in the same terms as the positive covenant with the covenantee or his successor; and (ii) to agree to do the same in the case of

1Rhone v Stephens [1994] 2 AC 310. In this case, a vendor had covenanted for himself and his successors to repair the roof of his own dwelling which overhung the covenantee’s property. The issue was whether the covenant, as a positive covenant, could be enforced against a successor in title. The House of Lords affirmed the principle that a successor could not be compelled to comply with positive covenants entered into by his predecessors in title. See also under this head Radford v De Froberville [1977] 1 WLR 1262 for the measure of damages for failing comply with a (positive) covenant to build a wall: it is the cost of building the wall and not the depreciation in the value of the land without the wall.

2The Landlord and Tenant (Covenants) Act 1995.

3The obligation arising under a chain of covenants must be protected by a restriction on the register of title of the burdened...

To continue reading

Request your trial
Navigation index

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT