See Restatement (Third) of Property (Servitudes) § 6.12 cmt. a (2014) (“A court has a general dispensing power, under principles of equity jurisdiction, to excuse compliance with requirements that significantly impede the functioning of common-interest communities and their associations.”). Furthermore, although an action enforcing a restrictive covenant by injunction is an action in equity, the primary issue here does not involve a restrictive covenant. SeeHoskins v. Walker, 255 S.W.2d 480, 481 (Ky.1953). To the contrary, the promise to pay Association fees as described in Section 23 of each Declaration is an affirmative covenant, not restrictive or “negative.”
We disagree with the circuit court's conclusion that the deed created a condition subsequent with right of re-entry or reversion. There is an important distinction between a covenant and a condition subsequent. Hoskins v. Walker, Ky., 255 S.W.2d 480, 481 (1953). "A covenant, rather than a condition subsequent, is created by the grant of property for particular uses without words of forfeiture."
By the very terms of the contract, the easement as recorded was not such imperfection of title as warranted appellee's rescission of the contract. It was noted in Hoskins v. Walker, Ky., 255 S.W.2d 480, 481, that a vendee is not required to accept a title which is subject to a more onerous covenant than that specified in the contract. It follows, of course, that the vendee is required to accept title subject to whatever covenants or conditions are specified in the contract.
A re-entry or other positive act is necessary on the part of the grantor. Smith v. City of Kuttawa, 222 Ky. 569, 1 S.W.2d 979 (1928); Hoskins v. Walker, Ky., 255 S.W.2d 480 (1953). Forfeitures are not favored by the law and must be construed most strongly against the grantor.