In the case of Goodman & others v Elwood [2013] the issue of a landowner's obligation to contribute to the maintenance of a private road was highlighted. This obligation was a "positive covenant" on the title. It is classed as a positive covenant because it involves taking positive action, paying towards maintenance of the road, unlike a "restrictive covenant" which restricts the use of land eg a covenant not to build or not to use land for a specific purpose.
In general, the burden (ie the liability) of a positive covenant does not bind successors in title of freehold land. The burden of a restrictive covenant, in contrast, does 'run with the land' so that the land is bound by the restriction regardless of the owner.
Positive covenants can bind successors in title if:
- each time a property changes hands the new owner covenants to indemnify the previous owner in respect of losses caused by a breach of the positive covenant;
- each new owner covenants directly with the person benefiting from the covenant to observe and perform the terms of the covenant; or
- by virtue of the principle in Halsall v Brizell [1957].
In Halsall v Brizell, it was established that a party cannot take the benefit of a right without taking the burden. The High Court held that a right to use the road was conditional on compliance with a positive covenant to contribute to maintenance of the road. This principle is known as "the doctrine of benefit and burden."
The doctrine of benefit and burden was further examined in Davies v Jones [2006], where the Court of Appeal identified three conditions which are required in order to satisfy the principle;
- The benefit and burden must be conferred in, or by the same transaction.
- The benefit must be conditional on, or reciprocal to, the burden.
- The party subject to the burden must have had the opportunity to reject the burden.
In Goodman and others v Elwood [2013], the Court of Appeal held that the doctrine of benefit and burden could also operate in the case of a transfer of part and could impose a burden on successors in title to contribute proportionally. In this case, D let individual units on an industrial estate. In order to gain access to their units, the tenants were granted rights of way over an unadopted road ("Accessway"). D subsequently sold part of the Estate including the Accessway to E and reserved rights for itself and its successors over the Accessway and covenanted to pay for its upkeep, with E covenanting to maintain it.
D then sold the freehold to one of the units to G, with G and its successor being granted a right to use the Accessway subject to a contribution of a reasonable proportion towards the cost of maintaining the Accessway.
E added some additional land to the Accessway which G's right of way did not extend over. G disputed its liability to contribute towards the maintenance of the Accessway and was subsequently sued by E for arrears which included an amount for the maintenance of the extension.
The Judge at first instance found that G was liable to contribute towards the maintenance of the Accessway including the extension as a matter of contract and because G had chosen to enjoy the benefit of the right of way.
On appeal the Court of Appeal held G was liable to contribute to the maintenance of the Accessway but not the extension. G did not have a right of way over the extension but had a terminable licence to use it. The burden of a covenant will only pass where there is a correlation between the right granted and the obligation imposed. In this case there was no correlation, as the burden of contributing to the maintenance of the extension was without an actual right of way but by way of a licence. If G refused to pay for the maintenance of the extension then E could simply terminate the licence.
The situation in relation to the enforcement of positive covenants remains challenging and the Law Commission is consulting on proposed reform.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
