Types of Covenants (Part 2)
September 19, 2017
19/9/17 Types of Covenants (Part 2)
- Joint or several: The former bind both or all the covenantors together; the latter hind each of them separately. A covenant may be both joint and several at the same time, as regards the covenantors; but, as regards the covenantees, they cannot be joint and several for one and the same cause, but must be either joint or several only. Covenants are usually joint or several according as the interests of the covenantees are such; but the words of the covenant, where they are unambiguous, will decide, although, where they are ambiguous, the nature of the interests as being joint or several is left to decide. The former relate to land generally and place the covenantee in the position of a specialty creditor only; the latter relate to particular lands and give the covenantee a lien thereon.
- Executed or executory: the former being such as relate to an act already performed; while the latter are those whose performance is to be future.
- Affirmative or negative: the former being those in which the party binds himself to the existence of a present state of facts as represented or to the future performance of some act; while the latter are those in which the covenantor obliges himself not to do or perform some act.
- Declaratory or obligatory: the former being those which serve to limit or direct uses; while the latter are those which are binding on the party himself.
- Real and personal: A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant which has for its object something annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land is invested with it and may sue upon it for a breach happening in his time. In the old books, a covenant real is also defined to be a covenant by which a man binds himself to pass a thing real, as lands or tenements. A personal covenant, on the other hand, is one which, instead of being a charge upon real estate of the covenantor, only binds himself and his personal representatives in respect to assets. The phrase may also mean a covenant which is personal to the covenantor, that is, one which he must perform in person, and cannot procure another person to perform for him.
In our next e-Legal Lesson we’ll include the last part of this classification of covenants.