Also known as: affirmative covenant · positive covenants
Written by attorneys · grounded in primary & secondary sources — see below
An obligation imposed on the owner of land that requires performance of a specified act or payment of money. The nature of the burden determines classification as affirmative rather than negative.
Alexis Archer buys a condominium unit subject to a recorded declaration. The declaration requires each owner to maintain landscaping and repaint exterior finishes in approved colors. When Archer stops mowing and lets paint peel, the association sues to compel performance. The obligation qualifies as affirmative because it compels Archer to undertake ongoing physical acts and expenditures rather than merely refrain from a use.
Anita Ali purchases a lot in a development governed by covenants requiring each owner to buy one share of stock in the homeowners association for no more than one hundred dollars. Ali refuses to purchase the share after taking title. The association sues to enforce the duty. The covenant is affirmative because it requires Ali to perform the positive act of acquiring the stock rather than to abstain from any conduct.
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A court looks to the nature of the burden imposed. An affirmative covenant requires the owner to perform an act or pay money. A negative covenant requires the owner only to refrain from a specified use of the land.
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Yes when the covenant meets the requirements for a servitude. The burden runs with the land if the declaration states that covenants run with the land and the obligation touches and concerns the property.
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Yes. Obligations to pay assessments for maintenance of common amenities such as libraries, data centers, or treatment plants are classic affirmative covenants because they compel positive acts of payment.
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Each resulting parcel remains subject to the covenant's burden unless the creating instrument provides otherwise. A court may apportion performance among the parcels if necessary.
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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…