Affirmative Covenant

Affirmative Covenant is also known as a positive covenant. It is a covenant obliging the party to take certain actions, especially contracts, that real estate will be used in a certain way. It is more than a restriction on the use of property . Affirmative covenant not "run with" or "bind" the land. It means that bounded by an affirmative covenant is only the original covenantor .

Covenant

Covenant is an agreement concluded between two landowners, which limits the use of one land by one owner (the burdened assets) in a way that is beneficial to the other (the benefited assets). "The covenantee" is a person who receives the benefit of the covenant, and "the covenantor" is a person agreeing to be bound by the burden .

Covenants might be  :

• positive (affirmative)
• or negative

The affirmative covenant forces covenants to surrender, not only to some restrictions, in using their property, but forces them to perform actions for the benefit of the owner of the dominant property.

Affirmative and negative covenants

The court has jurisdiction to contain the branch of negative covenants if a contract includes covenants to do some acts and to contain from doing some other acts, even though there might be no jurisdiction that would enforce specific affirmative covenants. The court will refuse to intervene if there is no possibility for negative covenants to be beneficially enforced. That is in case when the contract includes covenants which keep from doing certain acts to the injury of the complainant, and the question if the complainant substitute injury have to be determined by a trial, or if the enforcement of the negative covenants could be injustice, as if when payment for negative covenant of the party is an affirmative covenant of the second party, which can not be enforced by court . Equity will not implement the burden of a positive covenant, because this covenant needs positive action, which frequently involves forward expenditure and efforts on the part of the legal successor .

Long lease

Affirmative lease covenants are pretty capable of binding subsequent landowners. In this way, by artificially creating a long lease containing the desired affirmative covenant, and then "enlarging" the lease to freehand. Affirmative covenants will apply to subsequent landowners, as the lease rules still apply .

Examples of Affirmative Covenant

• A covenant obliging the party to pay rent on time or face legal action.
• A covenant obliging the party to keep the property in good repair and habitable condition.
• A covenant obliging the party to maintain the landscaping and lawns of the property.
• A covenant obliging the party to keep the property free of debris and graffiti.
• A covenant obliging the party to pay taxes on the property in a timely manner.
• A covenant obliging the party to maintain the property in a safe and secure manner.

Advantages of Affirmative Covenant

An Affirmative Covenant provides a number of advantages for both parties involved. These advantages include:

• The ability to ensure that a property is used in a certain way. This is especially useful in real estate agreements, as it allows the parties to ensure that their property is used in the way they intended.
• It provides certainty and security to both parties, as they can be certain that the other party will fulfill the terms of the agreement.
• It provides a legal framework for both parties to follow, which can help to protect their interests.
• It also helps to ensure that the property is kept in good condition and that all necessary repairs are undertaken. This can help to increase its value.

Limitations of Affirmative Covenant

An affirmative covenant is not without limitations. The following are some of the limitations of affirmative covenant:

• The covenant must be reasonable in scope and duration. A covenant that is too broad or too long-lasting may be unenforceable.
• The covenant must not violate any laws and must be consistent with the rights of the parties and the public.
• The covenant must be supported by consideration, meaning that both parties must receive something of value in exchange for the covenant.
• The covenant must be of benefit to the other party. It cannot be used to benefit only one party.
• The covenant must be specific, clear, and unambiguous. If it is vague, it may be unenforceable.
• The covenant must be in writing and signed by the parties in order to be legally enforceable.
• The covenant must be recorded in the appropriate public records in order to be binding on all parties.

Other approaches related to Affirmative Covenant

An Affirmative Covenant is an agreement between two parties that requires one party to undertake certain actions. Other approaches related to Affirmative Covenant are:

• Constructive Trust: A trust that is implied by law to prevent unjust enrichment. It is imposed by the court and requires a certain property to be held by one party for the benefit of another.
• Equitable Estoppel: A legal doctrine that prevents a party from denying or asserting something to the contrary of what was previously said or done.
• Subordination Agreement: A contract between two parties that changes the priority of one party's claim against a common asset or property.
• Merger Agreement: A contract between two companies that combines them into one entity.

In summary, an Affirmative Covenant is an agreement between two parties that requires one party to undertake certain actions. Other approaches related to Affirmative Covenant include Constructive Trust, Equitable Estoppel, Subordination Agreement, and Merger Agreement.

Footnotes

Affirmative Covenant — recommended articles

Vesting order — Tenancy At Sufferance — Executed consideration — Contractual relationship — Executory consideration — Assignment of claims — Consideration clause — Binding contract — Inchoate instrument — Profit orientation

References

• Dixon M. (2005), Modern Land Law,Psychology Press
• Great Britain: Law Commission (2011), Making land work: easements, covenants and profits á prendre, The Stationery Office
• Hepburn S. (2013), Australian Principles of Property Law, Routledge
• Wait W. (1873), The Practice at Law: In Equity, and in Special Proceedings, in All the Courts of Record in the State of New York; with Appropriate Forms, Tom 2, W. Gould
• West Publishing, Inc (2009), Black's Law, 9th Ed, 2009: Law Encyclopedia, Bukupedia
• Williams Jr. (2017), American Land Planning Law: Case and Materials, Tom 1, Routledge

Author: Magdalena Łubiarz