Freehold covenants: the burden of a positive covenant does not run
In 2012 Ivy sold part of her registered freehold land to Ben. In the transfer Ivy covenanted, for herself and her successors in title, to maintain the boundary fence between the two plots. In 2020 Ivy sold her retained land to Carl. Carl claims no right or benefit under the 2012 transfer. The fence has now collapsed, and Carl refuses to repair it. Ben wants to sue Carl.
Which of the following best describes whether Ben can enforce the covenant against Carl?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: No, because the burden of a positive covenant does not run with freehold land to bind a successor in title.
THE RULE TO REMEMBER
The burden of a positive freehold covenant does not run to bind successors in title, at law or in equity.
Freehold covenants: the burden of a positive covenant does not run
A covenant to maintain a fence is positive: it requires expenditure. In Rhone v Stephens [1994] 2 AC 310 the House of Lords confirmed that the burden of a positive covenant does not run with freehold land, either at law or in equity. Carl was not a party to the covenant and takes no reciprocal benefit (so the Halsall v Brizell benefit-and-burden principle does not help), so Ben cannot enforce it against him. Ben's remedy, if any, lies against Ivy on her personal covenant.
Why A is wrong: Tulk v Moxhay applies only to restrictive (negative) covenants.
Why C is wrong: Rhone v Stephens held that s.79 LPA 1925 is a word-saving provision and does not make the burden of positive covenants run.
Why D is wrong: S.78 concerns the running of the benefit, not the burden.
Why E is wrong: Entry on the register cannot make the burden of a positive covenant bind a successor.
That's today's practice done. Another featured question tomorrow.
Related questions
Burden of a restrictive freehold covenant runs in equity (Tulk v Moxhay)
Which of the following best describes whether Ruth can enforce the covenant against Brightside?
Legal leases of seven years or less as overriding interests (LRA 2002 Sch 3 para 1)
Which of the following best describes whether Callum is bound by Amara's lease?
Overreaching on payment to two trustees and a beneficiary in actual occupation (LPA 1925 ss.2 and 27; City of London BS v Flegg)
Which of the following best describes Margaret's position against the bank?
A GOOD HABIT, DELIVERED
Tomorrow's question.
In your inbox.
One free question a day, with the answer and reasoning.
No course pitches. Just your daily practice.