Positive covenant meaning

This Checklist Land title documentation—registered or otherwise—may indicate that the current owner, or a prior proprietor, has agreed covenants affecting all or part of the land. These obligations can be positive (for example, to keep a boundary fence in repair) or restrictive (for example, a promise not to build alongside a boundary). While covenants invariably bind the original contracting parties, the law treats positive and restrictive covenants differently when assessing their impact on successors in title to those parties. This Checklist is intended for use during due diligence where a property is burdened by and/or enjoys the benefit of one or more restrictive covenants. Such covenants may be: imposed for the landowner’s own benefit; they are personal and enforceable only by the original parties unless expressly assigned to a third party part of a scheme, such as a building scheme, where mutual enforceability is intended—see Practice Note: Restrictive covenants—nature and characteristics—Building schemes imposed on one parcel of land with the intention of benefiting or...

This checklist is intended for use in a due diligence process where a purchaser, tenant or lender is examining title to property that is burdened by, or enjoys the benefit of, positive covenants. It sets out the relevant matters to consider when reviewing and reporting on positive covenants. Are there any positive covenants affecting the property? A positive covenant is a commitment to perform an act or to make a financial contribution to something. Typical examples in property transactions include covenants to erect and keep in repair a fence, or to contribute towards the upkeep of a shared driveway or other communal facilities. HM Land Registry has no duty or authority to record the benefit of a positive covenant on a registered title...

What is a positive covenant? A covenant operates as a contractual promise. Common examples of positive covenants found in land transfers impose duties to: carry out repairs or upkeep (for example, access ways), or contribute towards repair and maintenance expenses incurred by another put up buildings or boundary fencing (for example, on a transfer of part) pay additional sums (i.e. overage) where, for instance, planning permission is obtained, or on a sale following development of the land What is the issue with positive covenants? At common law, it is firmly settled that the burden of a positive covenant affecting freehold land does not pass with the estate. Accordingly, if one party to a freehold transfer (Party B) gives a positive covenant in favour of the other (Party A), that obligation will not bind Party B's successors in title, despite section 79 of the Law of Property Act 1925...

In this issue: Transferring property Leasing property Easements, rights and covenants Property development Residential property Statutory compliance Environment, energy and buildings Agricultural property Property in Scotland Additional property updates this week Daily and weekly news alerts Trackers Transferring property TOLATA 1996—court can take account of wishes of minority beneficiaries In Savage v Savage [2024] EWCA Civ 49, the Court of Appeal, in line with Bagum v Hafiz [2015] EWCA Civ 801, [2015] All ER (D) 249 (Jul), reaffirmed that section 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) identifies the considerations the court must address when making an order under section 14 concerning how trustees exercise their functions, or the nature or scope of a person’s interest in the trust land. The Court of Appeal also clarified that the list is not restrictive and does not preclude the court from weighing other relevant factors...

In this issue: Leasing property Property management Investigating title Transferring property Easements, rights and covenants Property insolvency Property taxes Property in Wales Additional property updates this week Daily and weekly news alerts Trackers New Q&As Leasing property Statutory standing for Code agreement renewals In On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] EWCA Civ 43, the Court of Appeal decided that an operator does not have to be the party that originally entered into a Code agreement in order to invoke renewal rights under Part 5 of the Electronic Communications Code. Holding the benefit of the agreement is enough. Put differently, it is the practical enjoyment of Code rights that carries the statutory entitlement to renew, not the identity of the original signatories. The ruling settles who can start renewal proceedings under the Code and dispels doubt over whether assignees and transferees may rely on Part 5 protections....

In this issue: Surrender Trespass and adverse possession Agricultural tenancies Easements and covenants Residential tenancies Disputes and remedies Business tenancies Repairing obligations and dilapidations Rent and rates LexTalk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q&As Surrender Secure tenancy had not been surrendered and regranted following the joint tenant’s departure (Rahimi v City of Westminster Council). In Rahimi v City of Westminster Council [2024] EWCA Civ 73, the Court of Appeal dismissed the appellant’s challenge to a decision by the same judge who had set aside an earlier judgment. That judgment had held the appellant’s grandmother became the sole tenant under a tenancy granted to her alone by the respondent council, said to arise through implied surrender and regrant after her husband left. On reconsideration, the judge concluded there was no surrender...

A covenant operates as a type of contract. Under the doctrine of privity, contractual rights and obligations attach only to the contracting parties, excluding third persons. Yet, with land-related covenants, property law can permit enforcement by, and sometimes against, individuals beyond the original parties. The applicable principles are: in the majority of instances, the benefit of both restrictive and positive covenants passes to successors in title, as it ‘runs with the land’ at common law and in equity subject to specific conditions, the burden of a restrictive covenant runs with the land in equity alone (and so can be enforced against successors in title), whereas the burden of a positive covenant does not run with the land (but see Statutory exceptions below) This inability of positive covenant burdens to run with the land is widely viewed as a significant shortcoming in English property law. One cannot compel successors in title to comply with even simple positive duties (for example, maintaining a boundary...

This Practice Note outlines what covenants are and why they are used in debt capital markets transactions, and highlights common covenants included in the documentation for a debt securities issue. What is a covenant? Covenants—also referred to as undertakings—are commitments either to carry out certain actions or to refrain from particular conduct. An agreement to act is a positive covenant; an agreement not to act is a negative covenant. In debt capital markets documentation, as in finance documentation generally, covenants are employed to: ensure the obligor provides information needed for monitoring and oversight (information covenants) set financial targets or thresholds for the obligor (financial covenants) define the parameters within which the obligor runs its business and deals with its assets, and impose other ongoing obligations (general covenants) The obligor’s agreement to repay the debt and, where applicable, to pay interest and any premium, is often described as a covenant to pay...

Many of the standard covenants found in a conventional syndicated loan facility will likewise apply to a real estate finance investment transaction. For guidance on those provisions, including an explanation of what covenants are and the reasons they are employed, see Practice Note: Covenants; that resource explains their purpose and operation. This Practice Note focuses on the particular covenants that are commonly seen in a real estate finance investment transaction, and it concentrates on investment deals in the property finance sphere. Additional covenants must be observed in real estate finance development facilities, and compliance with these additional undertakings is required. These arise because the property financed will be developed during the term of the facility agreement, over the whole duration agreed between the parties. For further detail, see Practice Note: Real estate finance—covenants in development facilities for a fuller discussion. Purpose of covenants Covenants (or undertakings) impose positive and negative obligations on the borrower to be complied with throughout the loan; unlike representations, undertakings remain continuously in force...

date [ date ]. Parties [ name of Covenantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) whose registered office is at ] [ address ] (Covenantor) [ name of Covenantee ] [ of OR incorporated in England and Wales (company registration number [ number ]) whose registered office is at ] [ address ] (Covenantee) BACKGROUND The Property was conveyed to the Covenantor today. The Covenantor’s purchase of the Property took place subject to the provisions of the [ Transfer OR Original Deed ]. This Deed is supplemental to the [ Transfer OR Original Deed ]...

Date [ date ] Parties [ name of Covenantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Covenantor) [ name of Covenantee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Covenantee) [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] 1 Definitions In this Deed, the terms below shall have the following meanings: Covenantee’s Land – the freehold land known as [ description ] [ being [ part of the land ] registered at HM Land Registry with title number [ title number ] ] [ as indicated [ edged OR coloured OR hatched ] [ colour ] on the Plan ]...

Restriction and successor covenant How compliance with an overage deed is achieved will naturally hinge on its specific terms. Nevertheless, it is probable the overage beneficiary’s right to receive overage is safeguarded by a restriction noted on the proprietorship register, together with an obligation on any incoming purchaser to enter a positive covenant requiring them to observe and fulfil the provisions of the overage deed (a ‘successor covenant’)...

Easements—generally An easement is an intangible right enjoyed by the holder of a legal estate (dominant tenement) over land owned by another person (servient tenement), and it binds successors in title also. Easements are commonly positive, granting the dominant proprietor permission to go onto or use the servient land in some manner (e.g. a right of way). They may, however, be negative, as such restraining activities on the servient land and thereby conferring upon the dominant owner a right to receive something from that land (e.g. a right to light)...

Is a tree a plant or a hedge? On conventional botanical understanding, a ‘tree’ is treated as a variety of plant; nevertheless, we have not identified any case law or alternative legal authority that conclusively determines whether a tree falls within the broader definition of plant. Even so, a hedge may consist of trees (see below). In short, while science leans that way, the legal position remains unsettled at present, for now, in practice...