A successor in title to the original covenantor would not pay his share of the costs of repairing and maintaining sewers he used as appurtenant to his house. The covenantee in which the relevant housing estate was vested sued for their recovery. The defence was that as the defendant had not been a party to the original covenant he could not be liable for the sums claimed. That defence succeeded at first instance.
Held: The appeal failed. The rule against enforcing the burden of positive covenant against the covenantor’s successor in title was upheld but criticised. Peter Gibson LJ noted that there was an exception to the rule that the burden of a positive covenant does not run with the land in cases where the covenantor may not take the benefit of a transaction without undertaking the burden imposed by it, and stressed the need for a correlation between the burden and the benefit the successor in title has chosen to take and his ability to choose whether or not to take the benefit.
Judges:
Peter Gibson LJ, Hobhouse and Butler-Sloss LJJ
Citations:
Gazette 21-Jan-1998, [1998] EWCA Civ 15, (1998) 30 HLR 1052
Jurisdiction:
England and Wales
Cited by:
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 13 November 2022; Ref: scu.89788
