What is the main difference between a restrictive covenant and a positive covenant affecting land?

Q: What is the correct answer to: What is the main difference between a restrictive covenant and a positive covenant affecting land?

The correct answer is Restrictive covenants prohibit certain actions while positive covenants require specific actions to be taken. Option B correctly identifies the fundamental distinction between covenant types. Restrictive covenants impose negative obligations, prohibiting specific actions like building above height limits, operating certain businesses, or subdividing land. Positive covenants impose affirmative obligations requiring landowners to actively perform duties such as maintaining common areas, contributing to shared expenses, or preserving heritage features. This distinction is recognised in Australian property law and affects how covenants are drafted, registered, and enforced under the Torrens system.

Q: What background knowledge is needed for this Property Law question?

Covenants are legal obligations affecting land use that can bind current and future owners under the Torrens title system. They're typically created in subdivision developments or commercial arrangements. Restrictive covenants impose negative obligations (don't do something), while positive covenants impose affirmative duties (do something). Both types can be registered as encumbrances on the Certificate of Title. The Real Property Act in each state governs registration and enforceability. Positive covenants face greater enforceability challenges against successors due to the principle that the burden of positive obligations doesn't automatically run with land, though various statutory and contractual mechanisms can overcome this limitation.

Q: What is a good way to remember the answer to this Property Law question?

Think of restrictive covenants as STOP signs (they stop/prohibit actions) and positive covenants as GO signs (they require you to go and do something actively). Restrictive = Restrict = STOP doing something. Positive = Positive action = GO and do something. When you see a covenant question, immediately ask: 'Is this telling someone to STOP doing something or GO and do something?' This instantly identifies whether it's restrictive (STOP) or positive (GO), helping you eliminate wrong answers quickly.

Q: What exam tip applies to this Property Law question?

Look for action words in covenant descriptions. Words like 'prohibit', 'restrict', 'not permit' indicate restrictive covenants. Words like 'maintain', 'contribute', 'repair', 'provide' indicate positive covenants requiring active performance.

Q: How does this Property Law concept apply in Australian real estate practice?

In a residential subdivision, the developer registers covenants on all lots. A restrictive covenant prohibits building above two storeys (stops an action). A positive covenant requires all owners to contribute $500 annually for common area maintenance (requires active payment). When selling a property, the agent must disclose both types to buyers, explaining the height restriction limits development potential while the maintenance levy creates ongoing financial obligations. Both covenants will bind future purchasers as they're registered on title.

Question

Property LawProperty RightsMEDIUM

What is the main difference between a restrictive covenant and a positive covenant affecting land?

Answer Options

A

Restrictive covenants expire after 20 years while positive covenants are permanent

B

Restrictive covenants prohibit certain actions while positive covenants require specific actions to be taken

C

Restrictive covenants only apply to residential land while positive covenants apply to commercial land

D

Restrictive covenants are registered on title while positive covenants are only contractual