Rhone and Another v Stephens (executrix)

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date17 Mar 1994

House of Lords

Before Lord Templeman, Lord Oliver of Aylmerton, Lord Woolf, Lord Lloyd of Berwick and Lord Nolan

Rhone and Another
and
Stephens (executrix)

Conveyancing and real property - freehold land - enforcing covenants

Enforcing covenants against freehold land

Equity would enforce negative covenants against freehold land but had no power to enforce positive covenants against successors in title of the land.

The House of Lords so held in affirming the rule in Austerberry v Oldham CorporationELRTLR ((1885) 29 ChD 750) and dismissing an appeal by the plaintiffs, Mr and Mrs R J Rhone, from the Court of Appeal (Lord Justice Nourse and Lord Justice Steyn) (The Times January 21, 1993) which had allowed an appeal by the defendant, Jean Stephens, executrix of the estate of May Ellen Barnard, deceased, formerly of Walford House, Brook Street, Combwich, Somerset, from the order of Judge Cotterill in Bridgwater County Court that the defendant was bound by a covenant entered into by her predecessor in title to repair part of the roof of Walford House which overhung the plaintiffs' property.

Mr James Munby, QC and Mr John Virgo for the plaintiffs; Mr David Spens for the defendant.

LORD TEMPLEMAN said that the appeal raised the question of the enforceability of positive covenants between owners of freehold estates and involved consideration of the rule in Austerberry v Oldham Corporation.

The roof which covered Walford House also covered part of Walford Cottage. Both properties had been in common ownership until, by a conveyance in 1960, Walford Cottage had been sold.

Clause 2 of the conveyance had the effect, inter alia, of conferring and confirming on Walford House the right to be supported by the contiguous Walford Cottage. The conveyance also had the effect of conferring and confirming on Walford Cottage the right to be supported by Walford House.

Clause 3 did not confer any rights on Walford Cottage but by its express terms it appeared to confer on the owners for the time being of the cottage the right to sue the owner for the time being of Walford House for damages if the roof was not kept wind and watertight.

Since 1960 both properties had been sold. The plaintiffs were now the owners of Walford Cottage. The defendant was the executrix of the last owner of Walford House. The trial judge had ordered the owner of Walford House to pay damages to the owners of Walford Cottage for breach of the covenant contained in clause 3.

Mr Spens said that the...

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