Positive covenants—binding successors in title


Published by a ³ÉÈËÓ°Òô Property expert
Practice notes
In-house

Positive covenants—binding successors in title


Published by a ³ÉÈËÓ°Òô Property expert

Practice notes
In-house
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A covenant is a form of contract. The doctrine of Privity of Contract establishes that the rights and Liabilities created by a contract bind the parties to it but no-one else. However, in the case of a covenant relating to land, property law principles may allow that covenant to be enforced by and/or against persons other than the original parties. The applicable principles are:

  1. •

    in most cases, the benefit of a restrictive covenant and a positive covenant is enforceable by successors in title by virtue of it 'running with the land' both in Common law and in equity

  2. •

    subject to certain requirements, the burden of a restrictive covenant will run with the land in equity only (so as to be enforceable against successors in title), but

  3. •

    the burden of a positive covenant will not run with the land (but see Statutory exceptions below)

The fact that the burden of positive covenants does not run with the land is generally regarded as a serious deficiency in English property law. It is not possible

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United Kingdom
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Key definition:
Privity definition
What does Privity mean?

Privity, or privity of contract, is the general principle that a contract agreed between the parties to the contact cannot bind third parties.

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