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Positive Covenants Overview Notes

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A more recent version of these Positive Covenants Overview notes – written by Oxford students – is available here.

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Positive Covenants The running of a burden

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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]:

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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

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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.

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However, this has been firmly rejected:

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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

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he has notice of them,

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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

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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.

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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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