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Reform

Document Cited authorities 4 Cited in Related
AuthorChristopher Jessel
Pages227-234

Chapter 18 Reform

The rule that positive covenants do not bind successors has frequently been criticised. It has been considered several times by law reform bodies, which have produced various proposals. There has recently been a favourable government response and there are good prospects for change.

The Law Commission described some early proposals in their Consultation Paper 186, Easements, Covenants and Profits à Prendre:

7.2 The Committee on Positive Covenants1(also known as the Wilberforce Committee) was appointed in 1963 by the Lord Chancellor to examine whether it would be desirable to reform the law relating to positive covenants affecting land. The main problem identified in its report was that the burden of positive covenants (to be contrasted with restrictive covenants) cannot run with the land. ... This creates practical difficulties for many landowners. Although various devices had been developed in order to circumvent these difficulties, ... they were recognised by the Wilberforce Committee as inadequate. ...

7.3 In 1965, the Wilberforce Committee recommended that the benefit and the burden of positive covenants should run with the relevant land and that the Lands Tribunal should have the power to modify or discharge positive covenants. ... The Committee also recommended that two different schemes should be made available for voluntary adoption in respect of flats and other multiple developments: the first was similar to the strata titles system of New South Wales ... and the second was a less elaborate statutory model. ... It was further recommended that certain minimum obligations should compulsorily apply to all future buildings divided into horizontal units. ...

1[Fn 1 in original] ‘Report of the Committee on Positive Covenants Affecting Land (1965)

Cmnd 2719.’

228 Positive Covenants and Freehold Land

7.4 The Wilberforce Committee’s Report was followed in 1967 by the Law Commission’s Report on Restrictive Covenants (the ‘1967 Report’).2

The 1967 Report recommended that positive covenants and restrictive covenants be reformed simultaneously and a common code devised for both. The 1967 Report identified two main defects in the law concerning restrictive covenants. First, that the continuing enforceability of a particular covenant was often in doubt and secondly that the procedure for discharge or modification of covenants was inadequate.

7.5 In order to remedy the first defect, the 1967 Report proposed that a new interest in land be created, to be called a ‘land obligation’.3A land obligation could be created over specified land for the benefit of other specified land so that the burden and the benefit respectively would run automatically with the land. It was proposed that land obligations would be enforceable only by and against the persons currently concerned with the land, as owners of interests in it or occupiers of it. The 1967 Report expressly recognised that in nature and attributes new land obligations would be ‘more akin to easements than to covenants’. ... To address the second defect, the report proposed that section 84 of the Law of Property Act 1925 (‘LPA 1925’) should be amended to give the Lands Tribunal wider powers to modify or discharge land obligations.

In Rhone v Stephens Lord Templeman said:4

Mr. Munby, who argued the appeal persuasively on behalf of the plaintiffs, referred to an article by Professor Sir William Wade5and other articles in which the present state of the law is subjected to severe criticism. In 1965 a report by a committee appointed by the Lord Chancellor and under the chairmanship of Lord Wilberforce, the Report of the Committee on Positive Covenants Affecting Land6, referred to difficulties caused by the decision in the Austerberry case and recommended legislation to provide that positive...

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