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A covenant can be terminated if the original purpose of the covenant is lost. In some cases property owners can petition a court to remove or modify the covenants, and homeowner associations may include procedures for removing the covenants. The covenant may be negative or affirmative.
In Australia, negative pledge lending took off after a substantial deal by Pioneer Concrete in 1978. [1] It was a new way of lending, which allowed the banks to lend to corporations, something previously the domain of life insurers. Negative pledge clauses are almost universal in modern unsecured commercial loan documents.
Negative covenants may be continuous or incurrence-based. Violations of negative covenants are rare compared to violations of affirmative covenants. With most debt (including corporate debt, mortgages and bank loans) a covenant is included in the debt contract which states that the total amount owed becomes immediately payable on the first ...
Covenants can be financial, information, ownership, affirmative, negative or positive covenants. Often, the breach of any covenant gives the lender the right to call the loan or collect interest at a higher rate.
Shue further maintains that the negative and positive rights distinction can be harmful, because it may result in the neglect of necessary duties. [8] James P. Sterba makes similar criticisms. He holds that any right can be made to appear either positive or negative depending on the language used to define it. He writes:
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Lord Templeman held that the covenant could not be enforced because the covenant was positive. His judgment said the following. [1]Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it.
A positive covenant is a kind of agreement relating to land, where the covenant requires positive expenditure by the person bound, in order to fulfil its terms. Unlike a restrictive covenant, a covenant to perform a positive act does not "run with the land" and therefore does not bind the covenantor’s successors in title.