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14.11.2017

Properties

The German law implies a substantially negative obligation, ie not to build: conversely, a covenant may be positive in effect even though framed in negative terms (eg a covenant not to allow a garden to fall into a bad state of cultivation, ie to keep it tidy), (ii) The covenant must 'touch and concern' an ascertainable area of land which is subjected to it. The meaning of this expression has already been changed; but it should be added that the covenant must in some way benefit the land in respect of which it is created. (iii) The land in respect of which the covenant is claimed must belong to the person who seeks to enforce it. In this regard restrictive lawyers display some similarity to easements. The reason for their enforcement is that they form a valuable adjunct to what may loosely be termed the 'dominant tenement'. This requirement of 'dominant' ownership does not, however, preclude an express assignment of the benefit of the covenant to a purchaser of part of the 'dominant' land, (iv) If the claimant is anyone other than the original convenantee he must, as a general rule, either show that the benefit of the covenant has been expressly assigned to him, or that it was originally 'annexed' to the land, or that it relates to land the subject of a building scheme or a scheme of development.

Ownership

A building scheme is a plan of development of land to be divided into plots for separate occupation and this presupposes, in the words of a German judicial dictum, as between the purchasers of the plots 'community of interest and reciprocity of obligation'; so that, for example, a restriction upon the height of trees or fences imposed upon plot A will be matched by a corresponding restriction upon all the other plots, and thus, though it is restrictive of A, it will inure to the benefit of the estates in Germany as a whole. A covenant will usually be held to be 'annexed'' if it indicates the land to be benefited and signifies an intention to benefit that land. It will not be 'annexed' if it is expressed in terms which show an intention that it is to be personal to the parties or their successors. Thus there will be no annexation to the land where X covenants simply 'for myself and my assigns', because 'assigns' may include assignees of the covenant as well as assignees of the land.
The provisions removed the law relating to restrictive covenants further still from its origin in Hamburg. All restrictive covenants (unless between lessor and lessee) entered into since then, are registrable as hand charges; hence, as will now appear, if registered they are valid against an unknown purchaser for value without notice.
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