What is a Positive Covenant in Property?

Understanding covenants is key when you’re buying or selling property. You might have heard of restrictive covenants, which stop you doing certain things, but what about positive covenants? These aren’t as well known, but they can have just as much impact on your rights and responsibilities.

Here, we’ll look at what is a positive covenant, how they show up in property law and what they mean for your home or investment. We’ll also explore the big question: do positive covenants run with the land? And what does that mean in real terms?

Positive covenants vs restrictive covenants

A covenant is a legal obligation tied to a property. It can either require you to do something (positive) or stop you from doing something (restrictive).

A positive covenant is a promise to take a specific action. That might mean maintaining a boundary fence, contributing to shared access road repairs or managing drainage. In short, a positive covenant is about doing something, usually at your own cost.

A restrictive covenant, on the other hand, stops you from doing something. It might say you can’t build an extension, run a business from your home or keep livestock on the land.

Both can affect how you use or manage the property, but they’re treated very differently in law.

What is a positive covenant used for?

Developers and landlords often use positive covenants to set out long-term responsibilities for shared or communal parts of a property.

A few common examples:

• Maintaining a shared driveway or private road
• Paying into a service charge or sinking fund
• Keeping a garden or boundary wall in good repair
• Contributing to the upkeep of a block of flats or converted house

You’ll often find positive covenants in leasehold properties or shared freeholds, where joint upkeep matters. But they can also crop up in freehold titles, especially in modern housing estates or rural areas with private infrastructure.

Do positive covenants run with the land?

This is where things get a little tricky.

In general, restrictive covenants do run with the land. That means they bind future owners of the property, not just the original party who agreed to them.

Positive covenants, however, usually don’t. English property law has long made a distinction between the two. While restrictive covenants can be enforced against new owners, positive covenants can’t normally be passed on in the same way.

This creates a legal headache. For example, say one homeowner agrees to maintain a shared driveway. If they sell up, the new owner might not be legally bound to keep paying for repairs. That can leave neighbours in the lurch.

So how are positive covenants enforced?

Even though positive covenants don’t automatically run with the land, there are ways around this. Property developers and solicitors use a few legal tools to keep obligations in place.

Chain of indemnity covenants

Each new buyer agrees to carry out the same obligations and to pass them on to the next buyer. This keeps the covenant alive down the chain, but only works if the chain isn’t broken.

Mutual benefit and burden principle

If someone enjoys a benefit, like using a private road, they can be made to accept the associated burden, like paying for its upkeep. This was confirmed in the case of Halsall v Brizell (1957).

Rentcharges or estate rentcharges

Some developers use rentcharges to enforce positive covenants on freehold homes. This involves registering a legal charge on the property to make sure payments are made. These are less common now, but still exist.

Management companies

Many new build estates create management companies that oversee shared spaces. Homeowners become members and agree to the terms, including any positive covenants.

These workarounds can be complex and they rely on good legal drafting. If a positive covenant isn’t worded properly or the chain is broken, enforcement becomes a lot harder.

Are positive covenants a problem for buyers or sellers?

Not necessarily, but they do need to be understood.

If you’re buying a property with a positive covenant, your solicitor will flag it during the conveyancing process. They’ll check if it still applies, how it’s enforced and what it might cost you.

Some common issues include:

• Extra service charges
• Maintenance responsibilities for things like septic tanks or unadopted roads
• Legal uncertainty if the covenant isn’t enforceable

For sellers, positive covenants can put buyers off if the terms are unclear or the costs are high. Making sure everything’s documented and up to date can help avoid problems.

Can positive covenants be removed or changed?

Yes, in some cases. If a positive covenant is outdated, unclear or no longer serves a useful purpose, there are routes to have it discharged or modified.

You can:

• Apply to the Upper Tribunal (Lands Chamber) to have it removed or changed
• Negotiate with the party who benefits from it
• Show that the covenant is unenforceable

These steps can take time and might involve legal costs. But in the right circumstances, it could be worth pursuing.

How do you find out if a property has a positive covenant?

Check the title deeds. Most positive covenants will be listed in the charges register section of the Land Registry title.

You can also:

• Ask your solicitor to check during the conveyancing process
• Request a copy of the property title from HM Land Registry (for a small fee)
• Review any lease or management agreement if it’s a leasehold or shared freehold

Understanding what you’re responsible for can save time, money and stress later down the line.

Why positive covenants matter

Positive covenants might not get the headlines, but they can shape how you use and look after your property. If you’re buying, selling or just trying to understand your legal obligations, it pays to know what you’re dealing with.

Make sure you’re clear on:

• What the covenant requires
• Who it benefits
• How it’s enforced
• What your rights and options are

And if in doubt, get advice. A solicitor or property law specialist can help you understand the detail and avoid unwanted surprises.

Looking to sell a property with a positive covenant?

We can help. At Sell House Fast, we buy any house or flat, including those with legal quirks and complications. There’s no obligation, no fees to pay and no delay.

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