header-logo header-logo

Positively liable

10 January 2014 / Siobhan Jones
Issue: 7589 / Categories: Features , Property
printer mail-detail
web_jones

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

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Browne Jacobson—Matthew Kemp

Browne Jacobson—Matthew Kemp

Firm grows real estate team with tenth partner hire this financial year

Hogan Lovells—Lisa Quelch

Hogan Lovells—Lisa Quelch

Partner hire strengthens global infrastructure and energy financing practice

Sherrards—Jan Kunstyr

Sherrards—Jan Kunstyr

Legal director bolsters international expertise in dispute resolution team

NEWS
Can a chief constable be held responsible for disobedient officers? Writing in NLJ this week, Neil Parpworth, professor of public law at De Montfort University, examines a Court of Appeal ruling that answers firmly: yes
Neurotechnology is poised to transform contract law—and unsettle it. Writing in NLJ this week, Harry Lambert, barrister at Outer Temple Chambers and founder of the Centre for Neurotechnology & Law, and Dr Michelle Sharpe, barrister at the Victorian Bar, explore how brain–computer interfaces could both prove and undermine consent
Comparators remain the fault line of discrimination law. In this week's NLJ, Anjali Malik, partner at Bellevue Law, and Mukhtiar Singh, barrister at Doughty Street Chambers, review a bumper year of appellate guidance clarifying how tribunals should approach ‘actual’ and ‘evidential’ comparators. A new six-stage framework stresses a simple starting point: identify the treatment first
In cross-border divorces, domicile can decide everything. In NLJ this week, Jennifer Headon, legal director and head of international family, Isobel Inkley, solicitor, and Fiona Collins, trainee solicitor, all at Birketts LLP, unpack a Court of Appeal ruling that re-centres nuance in jurisdiction disputes. The court held that once a domicile of choice is established, the burden lies on the party asserting its loss
Early determination is no longer a novelty in arbitration. In NLJ this week, Gustavo Moser, arbitration specialist lawyer at Lexis+, charts the global embrace of summary disposal powers, now embedded in the Arbitration Act 1996 and mirrored worldwide. Tribunals may swiftly dismiss claims with ‘no real prospect of succeeding’, but only if fairness is preserved
back-to-top-scroll