Debt collection in Germany
Properties and ownership
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
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
or a scheme of development.
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
hence, as will now appear, if registered they are valid against an unknown purchaser for value without notice.
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