What is Positive Covenant (Property)?

Full Definition

A positive covenant is a promise attached to a property requiring its owner to actively do something -- common examples include maintaining a shared fence or boundary, contributing a share of the cost of a shared private road or drainage system, or keeping a building in good repair -- in contrast to a restrictive covenant, which instead prohibits an action (such as building an extension or running a business from the property). A crucial legal quirk of English land law is that, unlike restrictive covenants, the burden of a positive covenant does not automatically pass to a new owner when a freehold property is sold, because positive covenants require the covenantor to spend money or take action, and the law has historically been reluctant to bind successive freehold owners who never personally agreed to that obligation. In practice, conveyancers get around this limitation using specific legal mechanisms, most commonly a chain of indemnity covenants (where each new buyer promises to observe the covenant and to obtain the same promise from their own successor when they eventually sell) or, in some cases, restrictive covenant tools structured to achieve a broadly similar effect, so that the practical obligation is passed down the chain of ownership even though it is not directly enforceable against a current owner who did not personally sign up to it. Because the chain of indemnity approach depends on every link in the chain being properly documented and enforced, and because a break anywhere in the chain can leave the original covenant effectively unenforceable against a later owner, positive covenants over shared costs (private roads and drainage in particular) are a common source of dispute and conveyancing delay, and buyers are often advised to check for a management company or a formally documented cost-sharing arrangement rather than relying purely on an old positive covenant.

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