is no satisfactory way where properties are horizontally divided to enforce the
essential reciprocal positive obligations of repair and maintenance, and
interdependent services which each such owner requires. The inability of English
law to permit, for all practical purposes, the freehold horizontal division of
property is recognised to be a gap that needs to be filled. Although there are
examples of ‘flying freeholds’ both in the old common law4 and in flat
these examples have been the subject of interest for legal
historians and stand as a warning
the resultant legal and practical difficulties6
rather than being the basis for any modern development of the concept. Any
horizontal division leads inevitably to mutual interdependence. The legal
arrangements for such horizontally divided property must guarantee that the owner
for the time being of each property within a block can enforce those mutual
obligations on which the enjoyment and marketability of each property depends.
Over the years, lawyers have suggested a number of possible solutions to try and
achieve this satisfactory mutual interdependence in freehold tenure. The rock on
which all such attempts have been found wanting is
where it was held that the burden of positive obligations does not
pass from the original owner
the land who entered into them to successors in
title of the same property. Any hopes that the common law could be flexible
enough to overturn that decision have been dashed by the House of Lords in
Some of the attempts to circumvent the rule have had limited
success. The doctrine of mutual benefit and burden9 may provide a remedy in
some basic situations, but it is hedged around with limitations.10 Some believe that
the use of an estate rent charge could have been developed as an answer to some of
but there is little evidence of practitioners having sufficient
confidence in the device to adopt it very widely. In practice, the widely adopted
solution to horizontally divided property is to use leasehold tenure.
4 ‘Flying Freehold’ titles do exist, the most well known being those in Lincoln’s
See also Tolson,
Freehold Flats in English Law’ (1950) 14 Conv
The Nugee Committee, using the 1981 census figures, suggested that freehold owner-occupiers in
purpose-built blocks of flats were more numerous than might
imagined. Both Aldridge,
(London: Longman, 3rd ed, 1994), at p 215, precedent B2, and George and George,
Maxwell, 5th ed, 1984), include precedents for the sale on freehold title of
flats or maisonettes.
6 The freehold flat or maisonette is not attractive to many lending institutions; their reluctance to accept
freehold properties ‘in the air’ as security ensures that few exist.
7 (1885) 29 Ch
 AC 310. Lord Templeman gave four reasons for refusing to overrule
destroy the distinction between law and equitable rules relating to covenants; it would create
difficulties, anomalies and uncertainties and affect rights in land already created on the basis of the
rule; Parliament has not acted upon recommendations for reform; and a change by legislation is
preferable since it enables assessment of, and provision for, the consequences of change.
 Ch 169.
 Ch 106,289ff and the limits to the doctrine which have been made clear in
 AC 310 (HL).
Bright, ‘Estate Rent Charges and the Enforcement of Positive Covenants’  Conv 99; and
n 5, ch 12, pp 103- 104 and precedent B3, p 223.
12 The full list of the suggestions to get round the rule in
known and need not
repeated here. A summary of the devices can be found in Cheshire and Bum,
(London: Butterwortlls, 15th ed, 1994) pp612-613. The most
practical solution, for registered land only, is to covenant with the first proprietor and insist upon
protection by land registry entries prohibiting registration of transfers without first obtaining a direct
covenant from the transferor.
a flat situation, this could require direct covenants with other flat
owners. It is inconvenient and still not guaranteed to achieve the objective.
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