⇒ As the law stands, although the benefit of negative and positive covenants may run at both law and equity, only the burden of negative covenants may run in equity.

⇒ The current position is that, as the burden of positive covenants cannot run, any claimant (covenantee - the person with the benefit of a positive covenant) under a positive covenant is restricted to suing the original covenantor if they seek a remedy.

⇒ Of course, as the original covenantor will no longer be in possession of the property, any remedy is limited to damages only (i.e. at law). In other words, if the original covenantor no longer owns the property it is not possible to force them to uphold the covenant, so only damages will be available.

⇒ There are, however, a number of indirect methods for the enforcement of positive covenants.

⇒ One of the most common methods is establishing a "chain of covenants", by which each purchaser of the burdened land covenants separately with their immediate predecessor in title (i.e., the seller) to carry out the positive covenant i.e. each new purchaser of the covenantor's land agrees with each other to carry out the positive covenant.

⇒ If the original covenantor is sued on the covenant, they (the original covenantor) will then be able to recover any damages paid from the person to whom they sold the land (and who covenanted with them directly to perform the positive covenants), and so on down the chain.

⇒ However, as the benefit-holder can still only seek a remedy against the original covenantor, the remedies are still restricted to damages only.

⇒ Moreover, the chain is only as strong as its "weakest link". So, where any one link in the chain has passed away, is insolvent or otherwise unavailable to the courts, the chain will "break" and the claim for recovery will stop at that "link".

⇒ A somewhat different pattern may be adopted with each successive purchaser of the burdened property being required to covenant directly with the owner of the benefitting land/

⇒ However, as before, the integrity of this chain depends on each successive purchaser being required to enter into a new covenant. Where this is not done the chain breaks (c.f. Thamesmead Town v Allotey [1998]) and the obligation "hangs" at the last owner.

⇒ If the land burdened is registered, it is possible to register a restriction against that title requiring the purchaser of the burdened land to enter into the positive covenant as a condition of their purchase.

⇒ This is an effective way to ensure that burdens are undertaken by subsequent purchasers.

⇒ Positive covenants are also sometime enforced through use of an "artificial long lease".

⇒ By artificially creating a long lease containing the positive covenants and then "enlarging" the lease into a freehold (Law of Property Act 1925, section 153), the original positive covenants are preserved as part of the freehold.

⇒ The original positive covenant will bind successive owners of land, because the 'leasehold rules' remain applicable even though the land is now freehold.

⇒ So a long lease with 200+ years to run, which satisfies the other requirements of the Law of Property Act 1925, section 153, may be converted by the tenant into a freehold estate → on such conversion, any obligation on the tenant, including positive covenants, will become burdens enforceable against the freehold estate → this method is rarely used as it is very cumbersome.

⇒ A further means of enforcement can be found in the general principle of equity that someone who takes the benefit of a deed of covenant must also share any burden inherent in it.

⇒ It is not enough that the deed of covenant or the documents of title link the benefit and burden together. The burden must be inherently related to the benefit obtained and enjoyed.

• For example, in Halsall v Brizell [1957] the purchaser of a plot of land on an estate had been given various easements over estate roads (i.e. rights of way). In return, the purchaser covenanted to contribute to cost of maintaining the roads from which he derived a benefit. The successor of the purchaser claimed that he received the benefit of the easement but denied that he was obliged to make any payment, on the basis that the burden of a positive covenant would not run at law or equity.
• The court refused to accept this argument, holding that the successor in title could not take the benefit of an agreement unless he was also prepared to accept the related burdens.

⇒ Think about whether the law on covenants needs reforming.

⇒ Some other helpful legal resources on positive covenants:

• PDF Notes on Covenants
• Oxbridge Notes: Positive Covenants