Positive covenants on freehold property: what they mean in practice

What are positive covenants?

Covenants are legally binding promises or obligations given by one party (“the covenantor”) to another (“the covenantee”).

Positive covenants are promises or obligations to carry out certain actions. The most common covenants affecting a freehold title include:

• Maintenance of the boundary fence(s)
• Contribution towards the cost of maintaining a shared driveway, alleyway or other shared facility, or
• A promise to maintain shared facilities

What do they mean in practice?

Unlike restrictive (negative) covenants, positive covenants do not run with the land. They are personal obligations and do not automatically bind successors in title.

This means they usually cannot be enforced against a future owner of the property by the covenantee if there is a breach. However, the original covenantor may remain liable even after selling the property, unless the covenant is released.

Can positive covenants be enforced against future owners of a freehold property?

Generally, no – positive covenants cannot be enforced directly against successors in title.

How is this usually addressed?

Due to the limited enforceability, various legal mechanisms are used in practice to ensure compliance by future owners:

Deed of Covenant

The original covenant may require that on any sale, the buyer enters into a deed of covenant with the covenantee to observe and perform the positive covenants. This means that the covenantee has a direct contractual obligation from the new owner which they can enforce. 

Estate Rentcharges

Estate Rentcharges are commonly used on modern developments, particularly where there are shared private facilities. Each property owner is required to contribute towards the cost of maintaining those areas.

An Estate Rentcharge is not just a payment mechanism, it also provides for a means of enforcement.  Estate Rentcharges are often used alongside a requirement for future buyers to enter into a deed of covenant with the developer and / or the management company. Failure to pay an estate rentcharge can have serious consequences, including enforcement action against the property.

Chain of Indemnity

It is also possible to create a chain of indemnity covenants, to address this issue. This involves the future owners of the property entering into indemnity covenants with their immediate predecessors to protect them from claims, losses or liabilities resulting from breach of covenants.

This ensures that the new owner indemnifies the previous owner for any breach of or non-performance of the covenant.

In practice, if a positive covenant is not complied with (e.g. if the property owner fails to maintain the boundary fence); the original covenantor remains legally liable for the obligation.

However, they may be able to recover their losses from subsequent owners through the chain of indemnities.

How can Pinney Talfourd help?

Positive covenants can have ongoing implications for property owners, particularly where they relate to shared facilities or maintenance obligations. Understanding how these covenants operate and the mechanisms used to enforce them is an important part of the conveyancing process.

If you would like advice on positive covenants affecting your property, please contact our Residential Property team. Call 0800 011 1195 or email to speak to a member of the team.