Land 4 - positive covenants

Question 1

How can burden of positive covenants pass at common law?

Answer 1

• chain of indemnity

OR

• benefit & burden:
• same time
• linked
• theoretical agreement

Question 2

What are 2 ways BENEFIT of a positive covenant can pass to the new dominant owner at common law?

Answer 2

1. Express Assignment:
   - in writing;
   - express notice of assignment given to covenantor
2. Implied Assignment:
   - intention for benefit to run (assumed s78);
   - original covenantee has legal estate in dominant land when covenant made;
   - successor has legal estate at time of enforcement

Question 3

What is a positive covenant?

Answer 3

Requires you to do something

Question 4

Can positive covenants be enforced against a successor under equity?

Answer 4

No

Question 5

What is the exception to positive covenants pass at common law?

Answer 5

Exception to General Rule: mutual benefit and burden rule =

• benefit & burden conferred in same transaction
• clear link between benefit & burden
• genuine choice to take benefit or not

E.g. benefit from drains but help pay for upkeep

Question 6

Does a chain of indemnity allow the person with the benefit of a positive covenant to sue the current occupant?

Answer 6

No - the chain means it’s the original contractor who is liable.