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14 January 2010 / Eleanor Morgan , Jonathan Pratt
Issue: 7400 / Categories: Features , Property
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Double-edged sword

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Eleanor Morgan & Jonathan Pratt explore the doctrine of benefit & burden

Positive covenants do not normally bind successors in title. However, where a burden is related to a benefit, a successor in title may only be allowed to take the benefit of an agreement if it is also prepared to accept the related burden. This exception to the normal rule is known as the doctrine of benefit and burden. In the case of Davies & Ors v Jones and anor [2009] All ER (D) 104 (Nov), the Court of Appeal considered whether a party who had taken an assignment of a contract for the sale of land was bound to perform a positive covenant contained in that contract. The court held that the doctrine of benefit and burden did not apply on the facts of this particular case but, in coming to this conclusion, it provided some useful guidance on the doctrine.

Facts

The second defendants, Lidl, entered into a contract (the Jones-Lidl contract) to buy a site from Mr Jones (who

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