tunstells
Badges: 3
Rep:
?
#1
Report Thread starter 6 years ago
#1
I am getting so confused with these covenants!! - I know they do not run with the land and they are a promise to do something but I need to indicate the distinction between a positive covenant and an easement - their differences and likeness. Any help would be gratefully appreciated!
1
reply
Forum User
Badges: 19
Rep:
?
#2
Report 6 years ago
#2
Positive covenants are not really like easements. After all one of the requirements of an easement is that it cannot require the owner of the servient land to do anything, only for him to allow the owner of the dominant land to do something - see Rance v Elvin for a very clear statement to this effect. The 'easement of fencing' constitutes an exception but that is really in a class of its own.

Conversely, a negative easement and a restrictive covenant are quite similar. A negative easement is one that does not require the owner of the dominant land to 'do anything' to obtain the benefit, he just passively gets it. So a right to light through a particular window is a negative easement because the dominant owner does not need to do anything to receive the light. The reason I say it is similar to a restrictive covenant is that another way of describing the right would be to say that 'the servient owner is not permitted to build anything which obstructs the right', which is a restrictive covenant.
0
reply
tunstells
Badges: 3
Rep:
?
#3
Report Thread starter 6 years ago
#3
Thank you - I think I am getting it now!


(Original post by Forum User)
Positive covenants are not really like easements. After all one of the requirements of an easement is that it cannot require the owner of the servient land to do anything, only for him to allow the owner of the dominant land to do something - see Rance v Elvin for a very clear statement to this effect. The 'easement of fencing' constitutes an exception but that is really in a class of its own.

Conversely, a negative easement and a restrictive covenant are quite similar. A negative easement is one that does not require the owner of the dominant land to 'do anything' to obtain the benefit, he just passively gets it. So a right to light through a particular window is a negative easement because the dominant owner does not need to do anything to receive the light. The reason I say it is similar to a restrictive covenant is that another way of describing the right would be to say that 'the servient owner is not permitted to build anything which obstructs the right', which is a restrictive covenant.
0
reply
X

Quick Reply

Attached files
Write a reply...
Reply
new posts
Back
to top
Latest
My Feed

See more of what you like on
The Student Room

You can personalise what you see on TSR. Tell us a little about yourself to get started.

Personalise

Current uni students - are you thinking of dropping out of university?

Yes, I'm seriously considering dropping out (85)
14.05%
I'm not sure (27)
4.46%
No, I'm going to stick it out for now (190)
31.4%
I have already dropped out (13)
2.15%
I'm not a current university student (290)
47.93%

Watched Threads

View All