AuthorChristopher Jessel

Chapter 16



If the owner of property subject to a positive covenant is unwilling or unable to perform it then the dominant owner should be able to take proceedings to enforce it. Most people observe their legal duties and will, if only reluctantly, comply. The documents may be obscure or the legal obligation uncertain but, if the covenantee goes to court and is successful, the defendant will obey the judge’s order. The purpose of, and need for, positive covenants relating to communal responsibilities, such as payment of service charges or observing regulations on estates, is normally evident and most unit holders do what is expected. Other covenants, such as fencing, involve direct relationships between adjacent neighbours where again the function of the duty is obvious.

There will always be some people who will not comply. Unless there is some ultimate sanction the duty will go unfulfilled. An obligation which can not be enforced is worth nothing. The law therefore needs to back up any covenant with a remedy, however unlikely it is that actual enforcement will be required in any particular instance.

The methods already in use have their own remedies built in, although they are not always effective. A restriction on the register works by requiring the new servient owner to give a direct covenant to the dominant owner which then creates an enforceable contract; in the absence of the covenant the owner will not be registered as proprietor. An estate rentcharge carries the remedies under the LPA 1925, s 121. A right of re-entry allows the dominant owner to do the work. Under benefit and burden a servient owner in default loses the ability to exercise rights. Long leases as virtual freeholds carry all the normal remedies of a landlord and tenant relationship. Commonhold has its own statutory procedures.

194 Positive Covenants and Freehold Land

Apart from such specific remedies the common law courts were able, in a suitable case, to order the defendant either to pay a specific sum of money as damages or to give up possession of land. These became supplemented by equitable remedies, notably specific performance and injunctions. Specific performance generally applies as between contracting parties. An injunction may be granted in wider circumstances. A defendant who does not comply with an order is in contempt of court and may be punished with a fine or, in extreme cases, imprisonment. Most injunctions are prohibitory, requiring the defendant to stop doing something or not to do it in the future. If a positive obligation to do works is not complied with, the beneficiary normally does not want damages or even to get possession of the servient land, let alone see the person liable to perform it go to gaol, but wants to see the repairs carried out or to have the service charge paid regularly. In that case the dominant owner may seek a mandatory injunction.

The covenantee will need the assistance of the court to get a practical result. Mandatory injunctions order a defendant to do something. Traditionally, courts have been reluctant to grant them as they can involve supervision by a judge of the quality of works or of a course of action. In particular it is said that a court will not normally require a defendant to carry on a business or to do repairs.1

Injunctions were developed by the Court of Chancery and are equitable in nature. They are now authorised by the Senior Courts Act 1981, s 37:

(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just.

The Civil Procedure Rules, Practice Direction 40B supplementing Part 40, paragraphs 8.1 and 8.2 provide:

8.1 An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify the time within which the act should be done.

8.2 The consequences of failure to do an act within the time specified may be set out in the order. ...

1Halsbury’s Laws of England, Vol 12 (LexisNexis, 2015) at para 1105.


In Greene v West Cheshire Railway Company2a railway company agreed with a landowner to construct a siding of specified length on the landowner’s land next to the railway line and for ever maintain it at its expense on land for his use and to his reasonable satisfaction. The company later refused to do so. Sir James Bacon VC held that this agreement could be enforced by a Court of Equity. He said:3

A more direct, wilful, and determined violation of a plain contract cannot be suggested. No excuse is offered for it—no suggestion that it is impracticable, or even that it is inconvenient, for the company to perform their part of the contract of which the Plaintiff has performed his; but what they say is, that the Plaintiff may, by an action at law recover against them in money such amount of damages as a jury may think he has sustained by their wilful breach of their contract; and that, therefore, a Court of Equity will not entertain the complaint. I do not understand that the law, as administered in this Court, countenances any such defence. If that were the law, the great majority of the cases in which this Court has exercised its authority for the purpose of compelling specific performance of contracts might be readily disposed of, because in the great majority of cases a payment in money might satisfy the wrong which the breach of such contracts inflicts. But it would be a total departure from all principles by which the administration of this branch of the law has hitherto been guided, to hold that it is at the option of a man who has persuaded another to part with his rights upon a specific condition to say: ‘I can, but I will not, perform the obligation I have entered into; and instead of keeping faith, and honestly fulfilling my promise, I will leave you to take the chances of an action for damages, and reserve to myself the power of endeavouring to defeat your claim; and, instead of acknowledging your just rights, will compel you to receive, instead of them, such a sum as I may be able to persuade a jury will compensate you for the loss and injury and disappointment which my wilful wrongdoing may have occasioned to you.’

In Kennard v Cory Bros & Co Ltd4landowners permitted a colliery company to deposit spoil on their land. The company dumped too much and a landslide damaged the owner’s buildings. The judge found this was the company’s fault and granted an injunction to restrain the company from any further tipping. He also granted liberty to the owners to apply for a mandatory injunction to compel the company to carry out such works as might be necessary to keep the remedial works in good condition. Part of the remedial works became out of order and the owners applied for an injunction to compel the defendant to restore them. The

2(1871–72) LR 13 Eq 44.

3(1871–72) LR 13 Eq 44 at 50.

4[1922] 2 Ch 1, CA.

196 Positive Covenants and Freehold Land

judge granted a mandatory injunction requiring the company to do whatever was necessary to restore the remedial works by clearing out the manhole at the top of a drain. The Court of Appeal held that, although it was not the practice of the court to grant a mandatory order for the execution of a series of successive operations, it could and ought to grant a mandatory order compelling the execution of the specific work required to remedy the existing defect in the remedial works, and that there was therefore no objection in the particular circumstances to the order made by the judge. The fact that the drain was situate on the owners’ land was not an objection to the order, because in the circumstances of the case it must be assumed that they were willing to allow the company to enter upon their land to do the work.

Lord Sterndale MR said:5

It is, I think, pretty clear that as a general rule the Court will not grant a mandatory injunction in general terms to repair or to maintain, and that in considering whether it will do so or not one of the circumstances which may influence it in coming to a conclusion not to grant such an injunction is that the work will have to be done upon land which is not the land of the defendant. The ground on which the Court refuses to grant such an injunction has been stated over and over again, and I take it as stated by Kay L.J. in Ryan v Mutual Tontine Westminster Chambers Association6a case on employment to which we were referred. He there says:

‘Ordinarily the Court will not enforce specific performance of works, such as building works, the prosecution of which the Court cannot superintend; not only on the ground that damages are generally in such cases an adequate remedy, but also on the ground of the inability of the Court to see that the work is carried out.’

The word ‘superintend’ or ‘superintendence’ has been used in a number of other cases, and the only ground that I can...

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