A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the judge held that the roof was still owned by the main house, and that the owner of the cottage was able to enforce the covenant under the principle of pure benefit and burden.
Held: The burden of positive covenant did not run with the freehold. To allow the purre benefit and burden proinciple to work in this way would circumvent the rule in Austerberry. The benefits reserved for the main house were minimal and insufficient to make the benefit and burden pronciple operative.
Gazette 17-Mar-1993,  EGCS 3
England and Wales
Cited – Austerberry v Oldham Corporation CA 1882
Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Appeal from – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 December 2021; Ref: scu.88766