AuthorChristopher Jessel


The rule that a positive covenant affecting freehold land can not be enforced against a successor of the covenantor is firmly established in English property law. In the recent case of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd1in the Supreme Court in November 2018, a previous owner of the defendant’s freehold land had covenanted to maintain some leisure facilities which benefited the claimants’ land. Lord Briggs said ‘it is common ground that the burden of this covenant, being positive in nature and unsupported by a leasehold structure, did not bind successors in title’. The point was not even worth discussing; it was accepted by all parties.

The rule has long been criticised. Over 50 years ago the Wilberforce Committee recommended that the law should be changed and the Law Commission have reiterated that frequently since then. The rule was attacked unsuccessfully in the House of Lords in Rhone v Stephens2in 1994.

Conveyancers have used various devices, discussed in the following pages, to outflank the rule, with some success but at the cost of having to set up elaborate structures to do so. Most of them suffer from problems, such as technical defects, or delay and expense, or uncertainty in the way a judicial discretion might be exercised. The devices are hedged about with formalities and special rules which may trap the unwary and can be complicated to operate.

After a long period of little movement, change seems to be coming. The Law Commission have made proposals on positive obligations, which the government is considering, and they are due shortly to make others on leasehold enfranchisement, which will have an impact...

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