Also known as: affirmative covenants · positive covenant
Written by attorneys — see sources 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.
In January 1911, Neponsit Realty Company filed a map of its tract of land in Queens county with the county clerk. The company developed the tract for a strictly residential community and conveyed lots described by reference to the filed map and the roads and streets shown on it. In 1917, Neponsit Realty Company conveyed the land now owned by the defendant to Robert Oldner Deyer and his wife by a deed containing the covenant at issue. The covenant required the grantee and successors to pay an annual charge, not exceeding four dollars per lot measuring twenty by one hundred feet, to the grantor or its assigns, which could include a property owners association. The sums were to be devoted to the maintenance of roads, paths, parks, beach, sewers, and other public purposes determined by the grantor or assigns. The covenant provided that the charge would become a lien on the land each May first until paid. It stated that the covenants would run with the land until January 31, 1940. Every deed in the defendant's chain of title, including the referee's deed conveying the property to the defendant after its purchase at a judicial sale, recited that the conveyance was subject to the covenants and restrictions contained in former deeds of record. The plaintiff, Neponsit Property Owners’ Association, Inc., as assignee of Neponsit Realty Company, commenced this action to foreclose the lien arising from the covenant. The defendant interposed an answer containing denials, seven affirmative defenses, and a counterclaim. The defendant moved for judgment on the pleadings dismissing the complaint, while the plaintiff moved to dismiss the counterclaim and to strike the affirmative defenses. The Special Term granted the plaintiff's motion and denied the defendant's motion. The Appellate Division unanimously affirmed the order and granted leave to appeal to the Court of Appeals on certified questions.
View caseThe 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…