Previous: Easements

A covenant can simply be defined as a promise made in a deed by a covenantor for the benefit of a covenantee. In land law, covenants are used to protect land. There are two type of covenants: positive covenants, such as a covenant to contribute the repair costs of a road, and restrictive¬†covenants, such as a covenant not to use land for anything other than residential purposes. It is the effect of a covenant that categorises it as a positive or restrictive covenant, not its phrasing. For example, a covenant to use land for residential purposes only is in reality a restrictive covenant preventing other uses, just as a covenant not to fail to contribute to a road’s repairs costs is a positive covenant in disguise.

Effect of covenants

Once created by deed, covenants may be thought of as enforceable contracts between the promisor (covenantor) and the beneficiary (covenantee). They are always enforceable between these two parties, unless expressly excluded. The real use of covenants is their (potential) enforceability against successors of the covenantor and covenantee. This makes covenants useful for protecting a covenantee’s land after the covenantor has sold his land to someone else.

Liability of original covenantor

If a covenant provides that a covenantor would do or not do something, the covenant will be enforceable only against that covenantor. And if a covenant provides that the covenantor’s land would never be used to do something, that covenantor will be liable even if he no longer lives on that land...

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