Also known as: negative covenant
Written by attorneys · grounded in primary & secondary sources — see below
A covenant that requires the covenantor to refrain from performing a specified act. The nature of the required performance determines whether a covenant qualifies as negative rather than affirmative. When the burden limits permissible uses of land, the covenant is also termed a restrictive covenant.
Natasha Nielsen conveyed Whiteacre to Nathan Nguyen while retaining Blackacre. In the deed, Nielsen promised that no structure taller than two stories would ever be built on Blackacre. When Nielsen later sought to construct a three-story building, Nguyen obtained an injunction because the promise imposed a negative covenant whose burden ran with Blackacre.
Nexus Financial purchased a lot in a recorded subdivision from Nordic Ventures. The declaration barred any owner from operating short-term rentals. When Nexus listed the property on a vacation platform, neighboring owners sued for an injunction enforcing the negative covenant that limited land use.
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Neptune Energy contracted to supply a specialty alloy to Northstar Logistics for five years. After the contract ended, Neptune began marketing a similar product to Northstar's customers. Northstar sought an injunction, arguing that the circumstances implied a negative covenant barring such competition.
A negative covenant requires the covenantor to refrain from an act, while an affirmative covenant requires the covenantor to perform an act such as paying money or maintaining a structure. The distinction turns on the nature of the burden imposed.
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A court may grant an injunction to prevent breach of a contractual duty of forbearance when the usual requirements for equitable relief are satisfied. Negative covenants are especially suitable for injunctive relief because they do not require ongoing supervision of affirmative acts.
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A restrictive covenant is a negative covenant that limits permissible uses of land. It is enforceable as a servitude when the burden or benefit runs with the land.
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The burden of a negative covenant that restricts use of the promisor's land usually satisfies the touch-and-concern requirement because it diminishes the landowner's rights in connection with enjoyment of the land.
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…own, Kea, similar to Crisco and Spry. The plaintiff sued to enjoin this further competition with its product. Since the express negative covenants did not forbid this competition, the plaintiff argued that the court should imply a negative covenant to forbid it. The court rejected the defendant’s argument that only covenants intended…