The benefit and burden principle

The benefit and burden principle

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Author: Chris Dolan and Cara Beveridge

As a general rule, positive obligations relating to land do not run with it - essentially they do not bind future owners of it.

A limited exception to this rule is that a person cannot enjoy a benefit without accepting a burden that goes with it and for this to apply the benefit and the burden must be relevant to each other.

The case which established this was Halsall v Brizell, decided in 1957. It concerned an obligation to contribute towards the cost of maintaining a roadway over which rights of way were granted. The court said that the obligation to pay for its upkeep was unenforceable BUT that the successor in title to the original owner was not entitled to exercise the right of way if it did not also undertake the obligation to pay for the upkeep of the road. The exercise of the right was conditional on compliance with the positive obligation.

Halsall v Brizell has recently been endorsed in Elwood v Goodman (2013) in which the Court of Appeal was asked to consider whether a successor in title of part was bound by a positive obligation to contribute to the maintenance of an estate road.

In September 1986, Dobson sold part of an industrial estate to Elwood. In the transfer, Dobson reserved a right of way over the estate road and covenanted that it and its successors in title would contribute towards the cost of maintenance of the road. Elwood covenanted to maintain the road.

Dobson sold a unit on the industrial estate to Mr Goodman. Subsequently Elwood extended the right of way by one metre.

Elwood sued Goodman for arrears of his maintenance contribution claiming that Goodman was liable to pay the maintenance charges under the rule established in the case of Halsall v Brizell.

The Court of Appeal considered 3 issues and decided them as follows

. Could the benefit and burden principle apply where a successor in title acquires only part of the land that originally benefitted from the right of way?

Yes. It did not matter that there was no mechanism in the original transfer to provide for the sub-division of the retained land. The new owner of part was liable to contribute a fair and reasonable proportion of the maintenance costs by reference to the portion of the road which its unit abutted.

. Did it matter that the burden of the obligation had not been registered against Dobson's title?

No. The burden of a positive covenant does not create an estate or an interest in land - unlike a restrictive covenant which should be noted against an affected title. The fact that the positive obligation had not been registered did not matter and it was irrelevant to the operation of the benefit and burden principle.

. Was Goodman liable to pay towards the contribution to the maintenance of the one metre strip?

No. Under the benefit and burden principle there has to be a correlation between the related benefit and burden. In this case Goodman had no right to use the one metre extension (just a terminable licence to use it) and so was not liable to contribute to the cost of its maintenance.

The enforcement of positive obligations relating to land is tricky. This decision in Elwood is a welcome confirmation that the benefit/burden principle continues to operate as a valid exception to the rule that positive obligations cannot be enforced against successor owners.

It is also a welcome clarification that the principle can apply where ownership has fragmented since the original obligation was created and that it can apply regardless of any land registration notice having been entered.

In fact, and depending on the nature of the positive obligations at issue, relatively few developers will depend on this method of enforcement alone. They are likely to prefer a more sophisticated means of ensuring that the burden of positive covenants passes with the land. Nonetheless, when it comes to the practical issue of road maintenance, this decision confirms the availability of a positive measure in persuading users that they should pay.

About the author

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Cara Beveridge

Senior Associate

03700 86 6910

Cara is a real estate lawyer and has experience in acting for banks in relation to secured lending, investor clients and developers as well as providing assistance in corporate transactions.

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