What is a Positive Covenant?

When understanding property transactions in the UK, you may encounter the term "positive covenant."

While it might sound like an unfamiliar piece of legal jargon, understanding positive covenants is crucial for property buyers, sellers, and owners, particularly in cases involving shared responsibilities such as property maintenance or communal charges.

This guide will explain what a positive covenant is, how it differs from other covenants, and what obligations it entails.

What is a Positive Covenant?

A positive covenant is a legally binding promise or obligation to perform a specific action in relation to a property. Unlike restrictive covenants, which prevent property owners from doing certain things (like building extensions or running businesses from their homes), positive covenants require property owners to actively do something.

Examples of positive covenants include:

• Paying for the upkeep of a shared boundary wall.
• Contributing towards the maintenance of communal areas in a housing development.
• Ensuring certain parts of the property, such as fences or pathways, are kept in good condition.

How Does a Positive Covenant Differ from a Restrictive Covenant?

Understanding the difference between positive and restrictive covenants is vital, as they have different implications for property owners.

• Restrictive Covenants: These restrict or limit what an owner can do with their property. For example, a restrictive covenant might prohibit the use of the property for anything other than residential purposes or prevent alterations to the building. Importantly, restrictive covenants "run with the land," meaning they automatically apply to subsequent owners of the property. They remain legally binding as long as they are properly registered with the property title at the Land Registry.

• Positive Covenants: In contrast, positive covenants impose a duty on the owner to actively do something, such as maintaining shared areas or paying service charges. The key distinction here is that positive covenants do not automatically "run with the land." This means that they are typically personal obligations and do not automatically bind future owners unless specific legal steps are taken.

Do Positive Covenants Pass on to New Owners?

Unlike restrictive covenants, positive covenants do not automatically bind new owners when the property is sold. Because of this, additional steps are often required to ensure that positive covenants are upheld by subsequent owners.

In practice, when a property with a positive covenant is sold, the seller will usually be required to enter into a Deed of Covenant with the new owner. This deed ensures that the new owner agrees to assume the obligations of the positive covenant.

Without this legal agreement, the new owner would not be automatically bound to honour the obligations, which could create complications for third parties who rely on those obligations being fulfilled.

For instance, if a group of homeowners is collectively responsible for maintaining a private road, each owner would typically enter into a Deed of Covenant when selling their property, ensuring that the new owner takes on the responsibility of contributing to the road's maintenance.

Examples of Positive Covenants in Practice

Positive covenants can vary in scope, but here are some common examples you may come across in property transactions:

• Boundary Maintenance: If you share a boundary wall with your neighbour, a positive covenant might require you to contribute to the wall's upkeep or repairs. This ensures that both property owners share the responsibility for maintaining the wall.

• Service Charges for Communal Areas: In developments with communal gardens, roads, or other shared facilities, positive covenants are often put in place to ensure that all residents contribute to the upkeep of these areas. These covenants help prevent disputes over maintenance responsibilities and costs.

• Drainage and Sewage Systems: If your property shares drainage or sewage systems with others, a positive covenant might require you to contribute to their maintenance. Failing to adhere to these obligations could lead to legal action from neighbours or local authorities.

• Shared Driveways: In cases where two or more properties share a driveway, a positive covenant might require all homeowners to keep the driveway in good condition. This could include repaving it or covering any costs associated with its maintenance.

Related:

What does a Residential Conveyancer do?

What is a Deed of Covenant?

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Why are Positive Covenants Important?

Positive covenants are crucial because they help maintain the overall quality and condition of properties and communal spaces.

Without positive covenants in place, disputes could arise over who is responsible for upkeep, which could lead to disrepair or unfair financial burdens falling on certain property owners.

For example, imagine a block of flats where residents share a garden and hallway. Without a positive covenant requiring all residents to contribute to the maintenance costs, one resident might refuse to pay, leaving others to bear the financial burden.

Positive covenants ensure that all property owners contribute fairly to the upkeep of shared areas, preventing conflicts and preserving the property's value.

How Are Positive Covenants Enforced?

Positive covenants are enforceable through legal mechanisms, and failure to comply with them can result in serious consequences. If a property owner breaches a positive covenant, the party benefiting from the covenant (such as a neighbour, management company, or landlord) may take legal action to enforce compliance.

There are several ways a positive covenant can be enforced:

• Injunctions: The court may issue an injunction ordering the property owner to fulfil their obligations under the covenant. For example, if a property owner fails to repair a shared boundary wall, the court could issue an order compelling them to carry out the necessary repairs.

• Specific Performance: In some cases, the court may order the property owner to perform the specific actions required under the covenant. This could include making payments towards communal maintenance costs or carrying out repairs.

• Damages: If the breach of the covenant has caused financial loss to the benefiting party, they may seek compensation through the courts. For instance, if the lack of maintenance on a shared driveway has resulted in damage to other residents' vehicles, they could claim damages from the property owner who failed to fulfil their obligations.

It’s important to note that enforcing a positive covenant can be more challenging than enforcing a restrictive covenant. This is because positive covenants do not automatically "run with the land," and therefore the legal responsibility may not automatically transfer to a new owner unless a Deed of Covenant is in place.

How Long Does a Positive Covenant Last?

The duration of a positive covenant depends on the specific terms laid out in the original agreement. In many cases, a positive covenant remains in force for as long as the need for it exists. For example, a positive covenant to maintain a shared driveway would typically remain in place as long as the driveway is in use.

However, some covenants may include a specific time limit or may cease to be relevant over time due to changes in the property or surrounding area. For example, if a covenant relates to a shared wall that is later removed, the covenant may no longer apply.

If there is any ambiguity about the duration or enforceability of a positive covenant, it’s best to seek legal advice from a conveyancing solicitor.

What Happens if You Breach a Positive Covenant?

Breaching a positive covenant can have significant consequences. If you fail to comply with the obligations set out in the covenant, the party benefiting from the covenant has the right to take legal action against you.

As mentioned earlier, this could result in the court issuing an injunction, ordering specific performance, or awarding damages. In extreme cases, failure to comply with a court order could lead to further legal consequences, including fines or, in very rare cases, imprisonment.

It’s also worth noting that if you are selling a property, failing to comply with a positive covenant could delay or jeopardise the sale. The buyer’s solicitor will likely check for any outstanding obligations related to positive covenants, and unresolved issues could cause complications.



Related:

How Long Does the Conveyancing Process Take?

How much does Residential Conveyancing cost?

Guide to Remortgage Conveyancing

Do I Need a Conveyancer for a Remortgage?

Conclusion: Why Positive Covenants Matter in Property Transactions

Positive covenants play a crucial role in property transactions, ensuring that all property owners contribute fairly to the maintenance and upkeep of shared areas or facilities. Whether you are buying, selling, or simply maintaining your property, it’s essential to understand any positive covenants attached to the land and ensure you are compliant with their terms.

If you are unsure about the obligations imposed by a positive covenant, or if you are buying a property that involves such a covenant, it’s always advisable to seek legal advice from a conveyancing solicitor. They can help clarify your responsibilities and ensure that you are fully informed before proceeding with any property transaction.

By understanding and adhering to positive covenants, you can help avoid disputes, maintain the value of your property, and contribute to a well-maintained and harmonious living environment.