A covenant relating to immovable property that is annexed to the ownership of land binds and benefits successors in title; for a burden to run, the covenant must be negative in nature and the successor must have taken the land with notice.
Explanation
Application examples
Scenario
Rajesh purchased a residential property in 2015 from Priya under a deed that contained a covenant stating: "The successor in title shall not use the property for commercial purposes and shall maintain the compound wall to a height not less than six feet." Rajesh sold the property to Amit in 2020. The deed of sale to Amit made no reference to the covenant. Amit has now converted part of the property into a small office and has allowed the compound wall to deteriorate to four feet. Priya seeks an injunction against Amit. Does the covenant bind Amit?
Analysis
The covenant contains two promises: (1) not using the property for commercial purposes (negative), and (2) maintaining the compound wall (positive/affirmative). Only the first element can run with the land because it is negative; the second cannot run because it requires affirmative action. The first element also touches and concerns the land (it relates to use), and Priya's intention to bind successors is evident from the language 'successor in title.' However, the critical issue is notice: Amit's deed of sale makes no reference to the covenant, suggesting he may not have had notice. The property may not have been registered with the covenant recorded, or Amit's solicitor may not have discovered it in due diligence. Without constructive notice, Amit cannot be bound by the burden.
Outcome
Priya can obtain an injunction against Amit's use of the property for commercial purposes only if she can prove that Amit had actual, constructive, or imputed notice of the covenant at the time of purchase. The maintenance obligation will not bind Amit regardless because it is affirmative in nature.
Scenario
A housing society registered under the Cooperative Societies Act has a bye-law (covenant) stating that all flat owners must contribute equally to the maintenance and upkeep of common areas and buildings. When Suresh purchased his flat in 2018, he was given a copy of the bye-laws and he expressly acknowledged receipt. Suresh sold his flat to Kavya in 2022. The sale deed did not mention the covenant, and Kavya claims she was not told about the contribution requirement. The society now seeks to recover unpaid contributions from Kavya for two years.
Analysis
Although the covenant requires affirmative action (payment of contributions) and therefore prima facie cannot run with land under traditional doctrine, this scenario involves a housing society context where Indian courts have recognised exceptions. The covenant is integral to the community arrangement and all residents implicitly accept it as a condition of membership. Kavya had constructive notice because she purchased a flat in a registered society governed by bye-laws, and such bye-laws are discoverable through the society's register. The society's bye-laws, being enforceable contractual arrangements within the society framework, bind successors despite being affirmative in nature.
Outcome
Kavya will likely be held liable for contributions as a successor member of the society. Courts recognise that positive covenants in housing societies bind successors based on constructive notice of the bye-laws and the nature of communal property arrangements, creating an exception to the strict negative covenant rule.
Scenario
Landlord A owns two adjoining properties, Plot X and Plot Y. A sells Plot X to Buyer B in 1998, inserting a covenant in the deed: 'The buyer and successors shall not construct a building higher than 25 feet on this plot, ensuring view of Plot Y is not obstructed.' A retains Plot Y. In 2015, B sells Plot X to Buyer C. The deed from B to C omits all reference to the height restriction. C has now proposed a five-storey building (approximately 60 feet). A seeks an injunction. Can A enforce the covenant against C?
Analysis
The covenant is negative (restricting height rather than requiring action) and clearly touches and concerns the land because it directly relates to use and enjoyment. A's intention to bind successors is evident from the language 'and successors.' The covenant is also properly annexed to the land because it benefits A's adjacent property (Plot Y) and burdens B's property (Plot X), creating a dominant and servient tenement relationship. However, the critical failure is notice: C's deed from B contains no mention of the covenant. If C conducted a title search through the property register and the covenant was not recorded or noted in the title documents, C had constructive notice. But if C purchased in good faith for value without discovering the covenant through reasonable diligence, C may escape the burden.
Outcome
A can enforce the covenant against C only if C had notice (actual, constructive, or imputed) of the restriction at the time of purchase. If the covenant was properly registered or appeared in title deeds available during C's due diligence, C is bound. If not, and C was a bona fide purchaser for value, C may not be bound, though this protection is limited if the covenant was discoverable through society records or prior deeds.
How CLAT tests this
- Examiners may present a purely affirmative covenant (e.g., 'pay ₹50,000 annually for maintenance') and ask if it binds the successor, expecting candidates to incorrectly assume all covenants run; the correct answer is that affirmative covenants do not run with land.
- Reversed party roles: The question may ask whether the *benefit* of a covenant runs to a successor of the original covenantee (rather than asking about the burden running to successors of the covenantor), which operates under different and more liberal principles that candidates often conflate.
- A common confusion arises between covenants and easements; examiners describe a right-of-way or a right to use a resource and frame it as a covenant question, testing whether candidates distinguish between contractual covenants (this doctrine) and easements (which are proprietary interests under different law).
- Subtle omission of notice: Facts describe a successor who purchased from a chain of owners spanning decades, with no mention of whether the covenant was registered or appeared in title documents; candidates may assume the covenant binds without recognising that notice is an essential missing element.
- Scope-creep through statutory overlay: A question about a covenant may introduce facts about planning permission, building bylaws, or municipal restrictions, asking whether the covenant doctrine applies to these statutory restrictions; candidates must distinguish between contractual covenants and statutory prohibitions governed by administrative law.