Benefit and Burden

AuthorChristopher Jessel

Chapter 6

Benefit and Burden


The pure principle of benefit and burden is used to secure covenants to pay service charges on estates. It works by providing that a person may not take the benefit of easements to use the services without accepting the corresponding burden of paying a proportion of the related expenses. It can also be invoked between neighbours, for instance where part of a house is sold off and the buyer is to contribute to the cost of maintaining the shared access.

The obligation can be expressly incorporated in a deed granting the easements or it can operate by implication of law. On its own it is to some extent voluntary. If the unit holder does not wish to take advantage of the benefit, for instance if instead of using an estate road access to a property can be obtained over a route outside the estate, then there is no direct obligation to accept the burden of paying for the road.

The case usually cited as establishing the doctrine is Halsall v Brizell.1In 1851 Mr Okell and Mr Jeffrey bought some 40 acres at Garston in Lancashire which they laid out in plots as a housing development known as Cressington Park. The terms of sale of plots 1 to 174 included a covenant that each buyer would pay a ‘due and just proportion’ of the costs of maintenance of roads on the development and of a sea wall. Title to the roads was vested in trustees and Mr Halsall was one of them at the time of the case. Mr Finney bought 22 Salisbury Road on the estate in 1931 and when he died Mr Brizell was his executor. Initially the trustees made a demand for payment every year which involved equal payments by the owners of each plot. In 1950 they decided to change the method of charging by reference to each separately occupied unit. Mr Finney’s house was a large one which had become divided into five flats so the effect was to increase the claim. The executor

1[1957] Ch 169.

58 Positive Covenants and Freehold Land

did not initially object in principle to making some payment but did object to the new method of assessment.

During the case the issue came up of whether payment was due at all. It was clear that the positive covenant to pay could not be enforced as such against a successor to the original buyer. The judge, Upjohn J, referred to this in passing but did not need to go into it. The original deed purported to include a right of distraint, but that could not be enforced as there was no rentcharge to which such a right could be attached. He decided that the house owner could not take the benefit of using the roads and having the protection of the sea wall without bearing the corresponding burden of paying for them. He also held that the trustees could not change the method of assessment and the charge had to be by reference to the plot, not the use made of each house.

The principle was developed in ER Ives Investment Ltd v High2although that did not involve a positive covenant. In 1949 Mr High bought part of a bomb site and started to build a house. About the same time Mr Westgate bought the adjacent land and started to build a block of flats, the foundations of which encroached on Mr High’s land. At a meeting in 1949 they agreed that the encroachment could stay and in return Mr High should have an access over the yard forming part of the adjacent land. This was recorded in an exchange of letters but no formal deed was executed and no land charge registered. In 1950 Mr Westgate sold the flats to Mr and Mrs Wright who knew of the deal. In 1959 Mr High built a garage on his land which was so constructed that it could only be used by means of the yard. The Wrights made no objection. In 1950, the yard was resurfaced by Mr High at the request of the Wrights and he bore one-fifth of the cost. In 1962 the flats were put up for auction and the particulars referred to the right of way. Ives Investment acquired the land; the conveyance to it in 1963 was expressly subject to the right. Ives then objected to the right, arguing that it ought to have been registered as a land charge. It claimed an injunction restraining Mr High from trespassing on the yard. He counterclaimed that, if Ives’ claim was successful, he was entitled to a mandatory injunction that it should remove the foundations of the flats from his property; in response Ives argued that, under the Limitation Act 1939, it had squatters’ rights to retain the foundations.

The Court of Appeal held that the 1949 agreement gave rise to a mutual benefit and burden. Ives’ predecessors had acquiesced in the rights acquired by it and so Mr High had in equity a good right of way across the yard. Alternatively Ives’ predecessors had, by giving him a licence to use the yard, encouraging him to build a garage and accepting from him part of the cost of resurfacing the yard, represented to him that he had a right to use the access. That created an estoppel which prevented them from denying his use of the right of way.

2[1967] 2 QB 379.

The principle of benefit and burden was enunciated in detail by Megarry VC in Tito v Waddell (No 2).3That case also was not directly about positive obligations but incidentally involved the issue whether a grant of the right to carry out mining operations included an obligation to restore and replant. He said:4

One of the most important distinctions is between what for brevity may be called conditional benefits, on the one hand, and on the other hand independent obligations. An instrument may be framed so that it confers only a conditional or qualified right, the condition or qualification being that certain restrictions shall be observed or certain burdens assumed, such as an obligation to make certain payments. Such restrictions or qualifications are an intrinsic part of the right: you take the right as it stands, and you cannot pick out the good and reject the bad. In such cases it is not only the original grantee who is bound by the burden: his successors in title are unable to take the right without also assuming the burden. The benefit and the burden have been annexed to each other ab initio, and so the benefit is only a conditional benefit. In the other class of case the right and the burden, although arising under the same instrument, are independent of each other: X grants a right to Y and by the same instrument Y independently covenants with X to do some act. In such cases, although Y is of course bound by his covenant, questions may arise whether successors in title to Y’s right can take it free from the obligations of Y’s covenant, or whether they are bound by them under what for want of a better name I shall call the pure principle of benefit and burden ...

The previous head leads to the present head. In some cases the burden may be a continuing burden, such as an obligation to pay...

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