Rhone and Another v Stephens (executrix)
| Jurisdiction | UK Non-devolved |
| Court | House of Lords |
| Judgment Date | 17 March 1994 |
| Date | 17 March 1994 |
Restrictive Covenant - Positive covenant - Enforceability - Vendor covenanting for himself and successors in title to repair roof of own dwelling - Roof extending over adjoining dwelling conveyed to purchaser - Successors in title to purchaser seeking to enforce covenant against vendor's successor in title - Whether burden of positive covenant running with freehold land
In 1960 the owner of a house divided it into two separate dwellings. Part of the roof of the larger dwelling (“the house”) lay above a bedroom in the smaller dwelling (“the cottage”). The owner retained the house and sold the cottage by a conveyance in which he covenanted “for himself and his successors in title … to maintain to the reasonable satisfaction of the purchasers and their successors in title such part of the roof of [the house] as lies above the property conveyed in wind and watertight condition.” By 1984 the condition of the roof had deteriorated so that water leaked through into the cottage bedroom. The plaintiffs, who had purchased the cottage in 1981 by a conveyance containing an assignment of the benefit of the covenant, brought an action in the county court to enforce the covenant against the defendant, the successor in title to the original owner of the house. The judge found that the defendant was the owner of the roof and held that since the maintenance of the roof by the defendant was also to the benefit of her own property, the plaintiffs were entitled to enforce the covenant. The Court of Appeal allowed the defendant's appeal, holding that the disputed roof was owned by the plaintiffs, that the burden of positive covenants did not run with freehold land and that the principle that a party deriving benefit from a transaction entered into by his predecessor had to accept any burden therein was not applicable, since the benefits to the defendant's property from the disputed roof, in the form of eavesdrop and support, were minimal.
On the plaintiffs' appeal: —
Held, dismissing the appeal, that although a negative covenant was enforceable in equity on the ground that it deprived the owner of a right over property and his successor in title was to be prevented from exercising a right which he had never acquired, enforcement of a positive covenant against a successor in title would contradict the common law rule that a person could not be made liable upon a contract unless he was a party to it; that there was no principle requiring a party deriving benefit from a conveyance to accept any burden in the same conveyance, and although a condition could be attached to the exercise of a power in express terms or by implication, that condition had to be relevant to the exercise of the right, whereas the obligation in the 1960 conveyance to repair the roof was an independent provision which did not impose any reciprocal rights or benefits; and that, accordingly, although on a true construction of the 1960 conveyance the defendant was the owner of the roof and was therefore in breach of the covenant to repair, the burden of that covenant did not run with the land and the plaintiffs could not enforce it against her (post, pp. 316G, 317D–F, 318A–B, 322E–H, 323A–D).
The following cases are referred to in the opinion of Lord Templeman:
Austerberry v. Oldham Corporation (
Cooke v. Chilcott (
Cox v. Bishop (
Federated Homes Ltd. v. Mill Lodge Properties Ltd. [
Halsall v. Brizell [
Haywood v. Brunswick Permanent Benefit Building Society (
Jones v. Price [
London and South Western Railway Co. v. Gomm (
Morland v. Cook (
Nisbet and Potts' Contract, In re [
Sefton v. Tophams Ltd. [
Smith and Snipes Hall Farm Ltd. v. River Douglas Catchment Board [
Spencer's Case (
Tito v. Waddell (No. 2) [
Tulk v. Moxhay (
Williams v. Unit Construction Co. Ltd. (
The following additional cases were cited in argument:
Holmes v. Buckley (
Jackson v. Normanby Brick Co. [
Law Debenture Trust Corporation v. Ural Caspian Oil Corporation Ltd. [
Naas (Lady) v. Westminster Bank Ltd. [
Parkinson v. Reid (
Wilson v. Hart (
APPEAL from the Court of Appeal.
This was an appeal by the plaintiffs, Ronald John Rhone and Hazel Grace Rhone, by leave of the House of Lords (Lord Griffiths, Lord Goff of Chieveley and Lord Slynn of Hadley) given on 28 July 1993, from the judgment of the Court of Appeal (Nourse and Steyn L.JJ.) on 15 January 1993 allowing 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 decision of Judge Cotterill in the Bridgwater County Court dated 1 July 1991 that the defendant was bound by the terms of a covenant contained in a conveyance made between the predecessor in title of Walford House, as vendor of part of the property which had been made into a separate dwelling and renamed Walford Cottage, and the plaintiffs' predecessor in title, as purchaser of Walford Cottage, whereby the vendor had covenanted “for himself and his successors in title … to maintain … such part of the roof of Walford House … as lies above the property conveyed in wind and watertight condition.” The judge awarded general damages of £3,750 against the defendant in respect of the breach of covenant and ordered her to carry out the necessary repairs with an award of special damages in default. The original defendant, May Ellen Barnard, having died before the commencement of the hearing in the county court, the pleadings were amended to substitute as defendant the sole executrix of her will.
The facts are stated in the opinion of Lord Templeman.
James Munby Q.C. and John Virgo for the plaintiffs. Justice requires that the plaintiffs should have a remedy to enforce the rights which both the parties and their predecessors in title intended the plaintiffs to have. There is nothing in policy or principle to deny the plaintiffs a remedy. They have a remedy in covenant and, in any event, they have a remedy under the “pure” doctrine of benefit and burden as enunciated in Tito v. Waddell (No. 2) [
For many years the rule in Austerberry v. Oldham Corporation (
Originally, the benefit and burden of positive covenants ran at law and in equity: see Holmes v. Buckley (
The decision in Haywood's case not to extend the doctrine of Tulk v. Moxhay to affirmative covenants was accepted in London and South Western Railway Co. v. Gomm (
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