Rhone and Another v Stephens (executrix)
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1993 |
| Date | 15 January 1993 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Nourse and Lord Justice Steyn
Conveyancing - positive covenant- unclear wording - no qualifying effect
The unclear wording of a positive covenant by a vendor in a deed conveying a part of his property could not be relied on to qualify the effect of a clear and unambiguous parcels clause identifying the part of the property that was being conveyed.
Moreover, because of the continued existence of the much criticised rule in Austerberry v Oldham CorporationELR ((1885) 29 ChD 750) that the burden of a positive covenant could not run with freehold land, the vendor's covenant to maintain the roof over the part of the property conveyed was not enforcable against his successors in title.
The Court of Appeal so held in allowing an appeal by the defendant, Mrs Jean Stephens, the executrix of the deceased owner of Walford House, Combwich, Somerset, from the judgment of Judge Cotterell in Bridgewater County Court in July 1991 whereby he granted the plaintiffs, Ronald and Hazel Rhone, the owners of Walford Cottage, a declaration that the defendant was the owner of defective roofing overlying their cottage and was liable in nuisance for failure to keep it in repair. The judge had made various orders against the defendant including one that she pay damages of £4,913 to the plaintiffs.
Mr David Spens for the defendant; Mr J A Virgo for the plaintiffs.
LORD JUSTICE NOURSE said that in 1960 the freehold owner of Walford House had conveyed away as a separate dwelling part of his property together with some land. That part became known as Walford Cottage. The effect of dividing the property was that part of the roof of Walford House, the disputed roof, overhung a part of Walford Cottage.
The clear effect of the parcels clause in the 1960 deed together with the attached plan was to convey the disputed roof to the plaintiffs. However by clause 3 of the deed the vendor 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 Walford House … as lies above the property conveyed in wind and watertight condition."
Walford House changed hands, being acquired in 1977 by Mrs Barnard. In 1981 the plaintiffs acquired Walford Cottage. By 1984 severe leaks in the disputed roof appeared and the plaintiffs asserted that Mrs Barnard was under a duty to repair it.
Her...
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