Positive Covenants Overview Notes

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Positive Covenants The running of a burden • Smith: has long been clear that burden of positive covenants o Do not run with any land to which the covenant is attached  Rhones v Stephens [1994]: • Lord Templeman: o As between landlord and tenant both the burden and the benefit of a covenant pass at law with subsequent transfer  For everyone else, the benefit of a positive covenant may run with the land at law but not the burden. o Restrictive covenants can impose restrictions in favour of the covenantee and deprive the purchaser of some rights they would normally receive from being purchaser.  Thus, when the land then passes to another, that successor is also deprived of those rights which the original purchaser did not get • All Equity does is prevent said successor from enforcing the rights he never received. o In recent decades, number of attempts to extend the burden running which is recognised in equity re: restrictive covenants  To the application of positive covenants. • However, this has been firmly rejected: • Haywood v Brunswick Permanent Benefit BS [1881]: o Brett LJ:  An assignee taking land subject to a certain class of covenants is bound by such covenants if • he has notice of them, • and that the class of covenants only restrict the mode of using the land o but can't enforce burdens against the land which are affirmative unless implication = negative burden effect.

Limited ways to make the burden run • Commonhold o The use of "commonhold", a form of ownership, can lead to the burden of positive covenants running with the land  But commonhold is only suitable for certain types of situations so is not always a way of getting round this restriction. • Leasehold covenants o Leasehold covenants permit both positive and negative covenants to run  Any assignee of the Landlord or the tenants will be bound by the covenants  For practical purposes, the use of a long lease will be as sufficient as if it were a fee simple (e.g. for a block of flats where covenants running = necessary)

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