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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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MOVERS & SHAKERS

Clarke Willmott—Matthew Roach

Clarke Willmott—Matthew Roach

Partner joins commercial property team in Taunton office

Farrer & Co—Richard Lane

Farrer & Co—Richard Lane

Londstanding London firm appoints new senior partner

Bird & Bird—Sue McLean

Bird & Bird—Sue McLean

Commercial team in London welcomes technology specialist as partner

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When an ex-couple is deciding who gets what in the divorce or civil partnership dissolution, when is it appropriate for a third party to intervene? David Burrows, NLJ columnist and solicitor advocate, considers this thorny issue in this week’s NLJ
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
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