The Problem
| Author | Christopher Jessel |
| Pages | 1-9 |
Chapter 1
The Problem
1.1 PRELIMINARY
This book is about the way in which positive obligations can bind land in successive ownerships. There is a well-established rule that a positive covenant binding freehold land can not be enforced against a successor in title to the original covenantor. Despite that, conveyancers have devised various methods to validate such a covenant. In addition, statutory powers can bind the landowner for the time being, and the law of tort can impose duties for the protection of neighbours and visitors.
A positive obligation is a commitment to do something, as distinct from a restrictive obligation not to do something. A covenant is a solemn legal promise usually in the form of a deed, although covenants can be created or implied in other ways, as by statute. Restrictive covenants can bind land but a positive covenant, which requires action, binds only the person who has given it. The principal examples discussed are either to achieve a purpose, such as keeping a wall in repair, or to make a financial contribution by paying a service charge at regular intervals over the years. Covenants over freehold land are most often given by a buyer when the land is sold, although it is possible for someone who retains ownership to grant a covenant over the land in favour of someone else, for instance in connection with development or to preserve its landscape value. Covenants are also a feature of most leases.
The person who gives the covenant, the buyer or landowner, is called the covenantor. The person in whose favour the covenant is given, the seller or the manager of an estate, is the covenantee. A later owner who derives title from either is called a successor in title. Sometimes a covenant which binds successive freehold owners will also bind persons deriving a subsidiary title such as a tenant or licensee or a mortgagee in possession. It may, but does not always, bind a squatter in adverse possession. A covenantee or successor who has the benefit of
2 Positive Covenants and Freehold Land
an obligation is a beneficiary. The beneficiary is sometimes, by analogy with the law of easements, called the dominant owner, and the person liable to perform the covenant is called the servient owner.
Some positive covenants govern the relations between two parties such as neighbours. A fencing covenant is an instance. These may be called neighbour covenants. Others govern the administration of a residential or commercial estate and may be called estate covenants. The estate will comprise a number of units, which may be residential such as houses or may be commercial such as offices or shops or industrial buildings, and their owner is called the unit holder. The estate will have common parts, such as roads or landscaping. There will also be service media, such as pipes and drains. The use of them is services. These can include facilities, such as security guards. Services can be maintained and repaired by a manager, which may be the original developer of the estate or a successor or may be a management company or body of trustees set up for the purpose. The cost of maintenance and services will be met by a service charge. In theory, similar covenants could govern freehold units, such as flats or offices in a block, but in practice such buildings are almost invariably regulated by leases.
A positive obligation can be either once and for all, such as constructing a wall, or an active duty, often repeated over many years, such as keeping a roof in repair or clearing a drain as and when necessary or paying the service charge when demanded. Positive covenants therefore normally require expenditure of money either directly or in engaging builders to do work or, if the servient owner personally does the work, for example, at the very least in buying the wood to make a fence. There can be positive obligations which do not involve expenditure, as where the user of a right of way over a track must shut the gate, or the buyer of a house on an estate must become a member of the residents’ association company.
1.2 REASONS FOR THE RULE
The general rule is that if a covenant, which is a form of contract, imposes an obligation on the owner of freehold land, it can only be enforced against the person who initially gave it and not against any successor in title or person who has a derivative interest. There is a distinction with some restrictive covenants which bind successors in title to, and tenants of, the original covenantor provided they comply with certain conditions. Positive covenants are regarded as personal to the original covenantor.
The rule is often criticised as being arbitrary or out of date. Although the blame for its existence is sometimes put down to historical factors,
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