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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 =

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