Affirmative Covenant

Affirmative Covenant
See also

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 [1]. Affirmative covenant not "run with" or "bind" the land. It means that bounded by an affirmative covenant is only the original covenantor [2].

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)[3]. "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 [4].

Covenants might be [5] :

  • 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[6].

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 [7]. 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 [8].

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 [9].

Footnotes

  1. West Publishing, Inc (2009) s. 120
  2. Great Britain: Law Commission (2011), s. 95
  3. Williams Jr. (2017)
  4. Hepburn S. (2013), s. 269
  5. Williams Jr. (2017)
  6. Williams Jr. (2017)
  7. Wait W. (1873), s. 16
  8. Hepburn S. (2013), s. 284
  9. Dixon M. (2005) s. 320

References

Author: Magdalena Łubiarz