Positive covenants i.e. a covenant to do something as opposed to a restrictive covenant (which requires a party not to do something) don’t run with the burdened land. An original contracting party will be burdened but its successors will not.
As reported in our previous blog on positive covenants, the High Court held in the case of Churston Golf Club v Haddock that a covenant to maintain a fence was in fact a fencing easement and so bound subsequent owners without any of the usual arrangements (restrictions, deeds of covenant, indemnity covenants etc.) which would ordinarily be necessary in order for a positive covenant to run with the land.
The decision of the High Court was appealed to the Court of Appeal and has been reversed.
The Court considered the obligation imposed in the 1972 Conveyance (to maintain and keep in good repair boundary fences….) was in reality a positive covenant and as with any other positive covenant, it did not run with the burdened land (so as to bind successors in title).
The somewhat surprising decision reached at first instance has therefore been reversed. We have now reverted to the situation where in order for a positive covenant to bind successors in title, a mechanism needs to be put in place to ensure that successors in title to the burdened property are bound by the covenant. It’s not impossible to bind successors in title to perform positive covenants but the process needs to be clearly set out in the original documentation in order to work.
If you have any queries concerning the issues raised in this blog please email me.