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10 January 2014 / Siobhan Jones
Issue: 7589 / Categories: Features , Property
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Positively liable

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Siobhan Jones discusses the benefits & burdens of covenants

The burden of a positive covenant (such as to repair a fence or contribute to the cost of maintaining shared facilities) will not bind successors in title to freehold land. The original covenantor remains bound under the doctrine of privity of contract. This is an unsatisfactory state of affairs. However, there are certain “workarounds” which, when properly employed, enable the burden of a positive covenant to run: for example, chains of indemnity, rights annexed to freehold rentcharges, the use of leasehold title, and the benefit and burden principle, the latter being the focus of this article.

The law

The benefit and burden principle derives from Halsall v Brizell [1957] Ch 169, [1957] 1 All ER 371 in which it was held that a party may not take the benefit of a right granted without accepting the corresponding burden which goes with that right. This case involved a dispute as to whether the beneficiary of a right to use a road could be forced to pay a contribution

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NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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