Also known as: affirmative covenants · positive covenant
Written by attorneys · grounded in primary & secondary sources — see below
A covenant that requires the burdened party to perform an affirmative act or make a payment. The classification turns solely on the nature of the burden imposed rather than on the label the parties attach or the effect on land use.
Alpine Mining owns a parcel in an industrial park whose recorded declaration requires each owner to operate and fund a shared water treatment plant. When Apollo Energy purchases the parcel, the declaration's payment and operation duties bind it because they compel affirmative performance rather than mere abstention from a use.
A homeowners association sues a successor bank that took title to a lot after foreclosure. The recorded covenants require each owner to pay annual assessments for upkeep of common roads and parks. The court treats the payment duty as an affirmative covenant that runs with the land and holds the bank liable for the unpaid amounts.
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The distinction rests on the nature of the burden. An affirmative covenant requires the owner to perform an act or pay money. A negative covenant requires the owner to refrain from a specified use of the land.
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An affirmative covenant runs with the land when the creating instrument shows intent that the burden bind successors and the covenant satisfies the requirements for a servitude. Recording supplies constructive notice to later purchasers.
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Maintenance and payment duties are affirmative because they require owners to act or expend funds. Use restrictions that prohibit particular activities are negative because they require owners only to refrain from conduct.
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Yes. When the covenant is recorded in the chain of title, the purchaser takes subject to it regardless of actual knowledge because recording provides constructive notice.
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…as shall from time to time be determined by the party of the first part [the grantor], its successors or assigns.” It is an affirmative covenant to pay money for use in connection with, but not upon, the land which it is said is subject to the burden of the covenant. Does such a covenant “touch” or “ concern ” the land? These terms…