ENFORCING THE BURDENS OF POSITIVE
COVENANTS
ENFORCING POSITIVE COVENANTS
⇒ As the law stands, although the benefit of negative and positive covenants may run at both law
and equity, only the burden of negative covenants may run in equity.
⇒ The current position is that, as the burden of positive covenants cannot run, any claimant
(covenantee - the person with the benefit of a positive covenant) under a positive covenant is
restricted to suing the original covenantor if they seek a remedy.
⇒ Of course, as the original covenantor will no longer be in possession of the property, any remedy
is limited to damages only (i.e. at law). In other words, if the original covenantor no longer owns the
property it is not possible to force them to uphold the covenant, so only damages will be available.
A "CHAIN OF COVENANTS"
⇒ There are, however, a number of indirect methods for the enforcement of positive covenants.
⇒ One of the most common methods is establishing a "chain of covenants", by which each
purchaser of the burdened land covenants separately with their immediate predecessor in title (i.e.,
the seller) to carry out the positive covenant i.e. each new purchaser of the covenantor's land agrees
with each other to carry out the positive covenant.
⇒ If the original covenantor is sued on the covenant, they (the original covenantor) will then be able
to recover any damages paid from the person to whom they sold the land (and who covenanted
with them directly to perform the positive covenants), and so on down the chain.
⇒ However, as the benefit-holder can still only seek a remedy against the original covenantor, the
remedies are still restricted to damages only.
⇒ Moreover, the chain is only as strong as its "weakest link". So, where any one link in the chain has
passed away, is insolvent or otherwise unavailable to the courts, the chain will "break" and the claim
for recovery will stop at that "link".
⇒ A somewhat different pattern may be adopted with each successive purchaser of the burdened
property being required to covenant directly with the owner of the benefitting land/
⇒ However, as before, the integrity of this chain depends on each successive purchaser being
required to enter into a new covenant. Where this is not done the chain breaks (c.f. Thamesmead
Town v Allotey [1998]) and the obligation "hangs" at the last owner.
Top of Form
Bottom of Form
REGISTERING THE OBLIGATION
⇒ If the land burdened is registered, it is possible to register a restriction against that title requiring
the purchaser of the burdened land to enter into the positive covenant as a condition of their
purchase.
COVENANTS
ENFORCING POSITIVE COVENANTS
⇒ As the law stands, although the benefit of negative and positive covenants may run at both law
and equity, only the burden of negative covenants may run in equity.
⇒ The current position is that, as the burden of positive covenants cannot run, any claimant
(covenantee - the person with the benefit of a positive covenant) under a positive covenant is
restricted to suing the original covenantor if they seek a remedy.
⇒ Of course, as the original covenantor will no longer be in possession of the property, any remedy
is limited to damages only (i.e. at law). In other words, if the original covenantor no longer owns the
property it is not possible to force them to uphold the covenant, so only damages will be available.
A "CHAIN OF COVENANTS"
⇒ There are, however, a number of indirect methods for the enforcement of positive covenants.
⇒ One of the most common methods is establishing a "chain of covenants", by which each
purchaser of the burdened land covenants separately with their immediate predecessor in title (i.e.,
the seller) to carry out the positive covenant i.e. each new purchaser of the covenantor's land agrees
with each other to carry out the positive covenant.
⇒ If the original covenantor is sued on the covenant, they (the original covenantor) will then be able
to recover any damages paid from the person to whom they sold the land (and who covenanted
with them directly to perform the positive covenants), and so on down the chain.
⇒ However, as the benefit-holder can still only seek a remedy against the original covenantor, the
remedies are still restricted to damages only.
⇒ Moreover, the chain is only as strong as its "weakest link". So, where any one link in the chain has
passed away, is insolvent or otherwise unavailable to the courts, the chain will "break" and the claim
for recovery will stop at that "link".
⇒ A somewhat different pattern may be adopted with each successive purchaser of the burdened
property being required to covenant directly with the owner of the benefitting land/
⇒ However, as before, the integrity of this chain depends on each successive purchaser being
required to enter into a new covenant. Where this is not done the chain breaks (c.f. Thamesmead
Town v Allotey [1998]) and the obligation "hangs" at the last owner.
Top of Form
Bottom of Form
REGISTERING THE OBLIGATION
⇒ If the land burdened is registered, it is possible to register a restriction against that title requiring
the purchaser of the burdened land to enter into the positive covenant as a condition of their
purchase.
