Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

a particular window,201 such as general rights to all light falling on a garden are not allowed. Most of the claims just discussed fail for uncertainty,202 but there are more fundamental reasons for rejecting them. Allowing new restrictions would impede residential and commercial development. So residents on the Isle of Dogs have no right to complain if the Canary Wharf tower blocks their radio reception.203 The parties must know what right has been granted and whether or not it has been infringed and the extent of the burden imposed on land must be controlled.204

4.Limits to prescription

[32.34] Lord Denning MR has said such an easement would unduly restrict a neighbour in his enjoyment of his own land and hamper legitimate development.205 However, the same restriction could be imposed as a covenant,206 and it can therefore be seen that the real objective is not to limit the types of restriction recognised by the law, but rather to limit the kinds of restriction capable of being created by prescription.207 The fact that a neighbour has allowed his land to continue in its existing state is in no way a recognition that it will remain so.

L. NON-DEROGATION

[32.35] Restrictions can be created when land is divided into two parts by the principle of “non-derogation from grant”.208

M. RESTRICTIVE COVENANTS

[32.36] Tulk v. Moxhay209 gives its name to the doctrine that a restrictive covenant210 creates a burden binding the land affected by it. Later purchasers are bound (accord-

200Aldred’s case (1610) 9 Co Rep 57b, 77 ER 816; Knowles v. Richardson (1670) Holt KB 55, 86 ER 727; Arnold v. Jefferson (1679) Holt KB 498, 90 ER 1174; Chandler v. Thompson (1811) 3 Camp 80, 170 ER 1312; Tapling v. Jones (1865) 20 CB NS 166, 177, 191, 144 ER 1067.

201Bury v. Pope (1587) Cro Eliz 118, 78 ER 375.

202See above [32.22].

203Hunter v. Canary Wharf [1997] AC 655, HL; I Dawson and A Dunn (1998) 18 LS 510.

204Copeland v. Greenhalf [1952] Ch 488, 496, Upjohn J; Hill v. Tupper (1863) 2 W & C 121, 128, 159 ER 51, Martin B; Dyce v. Hay (1852) 1 Macq 305, 312, Lord St Leonards; Re Webb’s Lease [1951] Ch 808, 815, Evershed MR.

205Phipps v. Pears [1965] 1 QB 76, 83E.

206At 83D; Webb v. Bird (1862) 13 CB (NS) 841, 143 ER 332; EH Bodkin (1971) 35 Conv (NS) 324.

207Phipps at 84A, Lord Denning MR.

208See below [35.27].

209(1848) 2 Ph 774, 41 ER 1143, Cottenham LC.

210The leading text is Preston & Newsom, Restrictive Covenants Affecting Freehold Land (Sweet & Maxwell, 9th ed, 1998). Also: Chapelle’s LL (5th ed) ch 15; Cheshire & Burn (16th ed) ch 20; Dixon’s Principles (3rd ed) ch 8; Goo’s Sourcebook (3rd ed) ch 15; Gravells’ LL – Text (2nd ed) ch 8; Grays’ Elements (3rd ed) ch 10; Maudsley & Burn LL – Cases (7th ed) ch 12; Megarry & Wade (6th ed), [18.014–18.039]; Smith’s Property Law (4th ed) ch 21; Swadling “Property” ch 4 in Birks’ English Private Law, [4.156–4.162]; Thompson’s Modern LL ch 14.

ing to the date of creation of the covenant) either by notice or registration. Burdens are potentially perpetual and may devalue the land substantially.211

1.Tulk v. Moxhay itself

[32.37] In 1808 Tulk sold land which formed the centre of Leicester Square in London

– then a pleasure ground with an equestrian statue surrounded by iron railings – retaining several houses around the square. Elms paid £200, a high sum at that date for a sterile piece of ground. As buyer, he covenanted for himself and his heirs and assigns212 to maintain the garden as a pleasure ground, to keep it in an ornamental order and in an open state uncovered with buildings, and to allow the inhabitants to have a key on paying a reasonable rent. The garden was sold several times, before it passed in 1848 to Moxhay who had notice of the 1808 covenant. When Moxhay began to cut down shrubs preparatory to building, an injunction was issued to restrain any use other than as a garden.213 Lord Cottenham LC continued an interim214 injunction granted by the Master of the Rolls. The right to enforce the covenant against the original contracting party (Elms) was undoubted. Since the price he paid valued the land subject to the covenant, it would be inequitable for Elms to resell it at a greater price to a purchaser free of the burden. The buyer was bound because of his notice of the covenant when he bought. Tulk v. Moxhay ensures that a landowner can sell part of his land secure in the knowledge that what he retains cannot be made worthless.

2.A clean break?

[32.38] It is a matter of some nicety to know whether Tulk v. Moxhay followed existing precedent. Most probably Lord Cottenham invented a new equitable interest, deliberately extending leasehold covenants enforceable at law to a new category of covenants between neighbouring freeholders enforceable in equity, but also drawing an analogy with the easement of light. Judicial recognition lagged far behind development practice. Covenants were imposed in 1675 to regulate building in Bloomsbury (then on the outskirts of London) but these were not litigated until 1822,215 around the time that layout covenants affecting Georgian Bath and Cheltenham began to reach the courts.216

Restrictive covenants were enforced in equity at first instance in Duke of Bedford v. Trustees of British Museum,217 but Eldon LC’s appellate judgment equated covenants enforceable at law and in equity,218 an equation confirmed by Lord Brougham LC in

211Carter v. TG Baynes & Sons [1998] EGCS 109 (£218,000 damages).

212Heirs successors entitled to freehold land on death intestate before 1926; assigns purchasers.

213R v. Westminster CC ex p Leicester Square Coventry Street Association (1989) 59 P & CR 51, Simon Brown J (local government legislation overrode the covenant); Tulk v. The Metropolitan Board of Works (1867) LR 3 QB 94; London Squares Preservation Act 1931.

214(1848) 18 LJ Ch 83, 87, Langdale MR; query the history in R Griffith [1983] Conv 29; Shadwell V-C had generated the original injunction.

215Duke of Bedford v. Trustees of British Museum (1822) 2 My & K 552, 39 ER 1055.

216Schreiber v. Creed (1839) 10 Sim 9, 59 ER 515 (Pittville, 1827).

217Sugden on Vendors (Sweets, 10th ed, 1846) app, 57, Leach V-C.

218(1822) 2 My & K 552, 39 ER 1055 (injunction refused because of change in character of estate).

Keppell v. Bailey.219 Neighbourhood covenants are not enforceable at law.220 Soon afterwards Lord Cottenham LC referred to “cases before the Vice Chancellor of England” in which restrictive covenant doctrine had been put beyond dispute,221 meaning presumably Whatman v. Gibson222 and Mann v. Stephens.223 Full recognition of restrictive covenants between freehold neighbours rests on Tulk v. Moxhay itself and thus on a shaky doctrinal base. The Master of the Rolls treated Keppell v. Bailey as obiter224 whereas the Lord Chancellor stated it as authority for the opposite of what it decided. In truth Tulk v. Moxhay was a clean break with the past,225 and, like so many seminal cases, one based on a convenient misunderstanding of existing law.226

3.Parties affected

[32.39] Three forms of action must be distinguished. (1) Both positive and negative covenants were enforceable against Elms the original covenanting party.227 The legal contractual action for damages is supported by equity’s ancillary jurisdiction which makes an injunction available. (2) Leasehold covenants run between current landlord and current tenant at common law.228 (3) Restrictive covenants are enforceable against a purchaser of the burdened freehold land. When the site of Leicester Square had passed “by divers mesne conveyances” into the hands of the defendant Moxhay bought with notice of the covenant.

Tulk (benefit)

Figure 32-1 The parties in Tulk v Moxhay

Lord Cottenham confirmed the injunction against Moxhay, which shows that the covenant had created an equitable burden on the site of the square.229 Endurability requires a restrictive covenant meeting the rules set out in this chapter and is today

219(1834) 2 My & K 517, 39 ER 1042.

220Haywood v. Brunswick PBS (1881) 8 QBD 403, CA; Austerberry v. Oldham Corp (1885) 29 Ch D 752, CA; Hall v. Ewin (1887) 37 Ch D 74, 79; E & GC v. Bate (1935) 79 LJ News 203, Macnaghten J.

221Tulk v. Moxhay (1848) 2 Ph 774, 777, 41 ER 1143; CD Bell [1981] Conv 55.

222(1838) 9 Sim 196, 59 ER 333.

223(1846) 15 Sim 377, 60 ER 665.

224(1848) 18 LJ Ch 83, 84.

225It is now followed: Coles v. Sims (1853) Kay 56, 69 ER 25, Page Wood V-C; Keates v. Lyon (1869) LR 4 Ch App 218, 222–223, Selwyn LJ; Renals v. Cowlishaw (1878) 9 Ch D 125, 129, Hall V-C.

226Modern rationalisation is explained in Rhone v. Stephens [1994] 2 AC 310, 317E–318C, Lord Templeman.

227Federated Homes v. Mill Lodge Properties [1980] 1 WLR 594, CA.

228Spencer’s case (1583) 5 Co Rep 16a, 77 ER 72; now LT (Covenants) A 1995; see above [27.18ff].

229At 778.

dependent on registration of the burden.230 A similar principle applies to ship charterparties.231

4.Covenant must be restrictive

[32.40] The essential requirement for the operation of the modern doctrine of Tulk v. Moxhay is that the covenant should be restrictive in character. The case itself involved a covenant by the purchaser of Leicester Square and his successors

“[to] keep and maintain the said piece of ground and square garden and the iron railing round the same in its then form and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in neat and ornamental order

. . .”.

The italicised words are negative in a sea of the positive. An injunction was granted to stop building and to restrain the owner of the square from altering its character.232 Lord Cottenham’s judgment referred to any covenant of which a purchaser had notice,233 suggesting that notice of a positive covenant might create a proprietary burden,234 but after some doubt235 positive covenants were excluded by Haywood v.

Brunswick Permanent BS (1881).236

Restrictive character can be tested by the rule that the burdened owner must not be required to expend money,237 though this is not decisive. Certainly positive are to fence, to clean a cesspool, to pay water rates, to contribute to the cost of a road, or to repair.238 The test is substantive, rather than being based on the grammatical form of the covenant. Elms covenant in Tulk v. Moxhay to “keep and maintain the said piece of ground . . . in an open state, uncovered with any buildings” was a restriction on building. Good and bad parts of the covenant are separated out,239 unless they are inextricably intertwined.240

Only a small number of covenants are in common use. Archetypal examples are against building, including use as agricultural land or as a small holding. Many covenants are designed to preserve an estate layout on a residential development- Federated Homes v. Mill Lodge itself involved a covenant about building density. A major function of restrictive covenants is to restrict the use of neighbouring land. A covenant to use as a house is broken by conversion of a single house into two flats241

230See below [33.07].

231Law Debenture Trust Corp v. Ural Caspian Oil Corp [1993] 1 WLR 138, Hoffmann J; [1995] Ch 152,

CA.

232Query the dicta at (1848) 18 LJ Ch 83, 86–87, Lord Langdale MR.

233Cox v. Bishop (1857) 8 De GM & G 815, 821; Leech v. Schweder (1874) LR 9 Ch App 463, 475; Luker

v.Denis (1877) 7 Ch D 227.

234C Bell [1981] Conv 55; R Griffith [1983] Conv 29.

235Cooke v. Chilcott (1876) 3 Ch D 694; Morland v. Cook (1868) LR 6 Eq 252 (explicable as a rentcharge).

236(1881) 8 QBD 403, CA.

237Hall v. Ewin (1887) 37 Ch D 74, 79, Cotton LJ.

238See below [32.44ff].

239Shepherd Homes v. Sandham (No 2) [1971] 1 WLR 1062, 1066H–1067F, Megarry J; Clegg v. Hands (1890) 44 Ch D 503, CA.

240At 1067E.

241Ilford Park Estates v. Jacobs [1903] 2 Ch 522; Sunderland & S Shields Water Co v. Hilton (1928) 97 LJ KB 516. The court has power to authorise such a conversion under HA 1985 s 610.

or by erection of a block of flats,242 or by use for holiday lettings,243 but it does not control the highly undesirable activity of letting a house to a group of four students.244 A covenant to preserve residential use is broken by conversion to multiple residences or by institutional use.245 Many covenants prevent use for trades or the sale of alcohol. A common covenant in a sale of a pub is a clause creating a tied house and preventing the sale of guest beers; this clause is a valid restrictive covenant,246 since the grant of an exclusive right is held to be equivalent to a negative covenant.247

Leach V-C recognised in Duke of Bedford v. Trustees of British Museum248 the use of covenants to preserve the pleasure or profit of land.249 The basic object is to seek conformity across a development.250 Restrictive covenants can prevent obstruction of a view, keep a garden unbuilt on, protect a landscape,251 or regulate car parking.252 No doubt a covenant to preserve privacy would be too uncertain, but this may be the indirect effect of restrictive covenant253 and loss of privacy is relevant when determining a remedy.254

Clear wording is required since restrictions are construed against the person imposing them.255

5.Neighbour principle

[32.41] It is necessary for a restrictive covenant to comply with the neighbour principle – it must burden the land of one landowner and must benefit the land of a neighbour.256

242Rogers v. Hosegood [1900] 2 Ch 388, CA. Use as a private dwelling does not necessarily mean a single one: Briggs v. McCusker [1996] 2 EGLR 197, Ch D

243Caradon DC v. Paton [2000] 3 EGLR 57, CA.

244Roberts v. Howlett [2002] 1 P & CR 18 at 230, CA.

245Statute allows hostels for former mental patients under the “care in the community” scheme: National Health Service and Community Care Act 1990 sch 2 para 6; L Ref HUDA 1993 s 89; C & G Homes v. SS for Health [1991] Ch 365, CA; National Schizophrenia Fellowship v. Ribble Estates (1993) 25 HLR 476; Cadogan v. Royal Brompton Hospital NHS Trust [1996] 2 EGLR 115; Brown v. Heathlands Mental Health NHS Trust [1996] 1 All ER 133.

246Wilson v. Hart (1866) LR 1 Ch App 463; Catt v. Tourle (1869) LR 4 Ch App 654; Clegg v. Hands (1890) 44 Ch D 503, CA; Morrells of Oxford v. Oxford United FC [2001] Ch 459, CA. Many such covenants may infringe EU or domestic competition law.

247Holmes v. Eastern Counties Rly (1857) 3 K & J 675, 69 ER 1280.

248Sugden on Vendors (Sweets, 10th ed, 1846) app, 57; on appeal (1822) 2 My & K 552, 39 ER 1055.

249A covenant to use for recreation is broken by a lease to professional football club: Thames Water Utilities v. Oxford CC [1999] 1 EGLR 167.

250Oceanic Village v. United Attractions [2000] Ch 234, 252E, Neuberger J.

251Crawley v. Wolff (1888) 4 TLR 434, CA; Tulk v. Moxhay (1848) 2 Ph 774, 41 ER 1143; Western v. Macdermott (1866) LR 2 Ch App 72; Re Freeman-Thomas’ Indenture [1957] 1 All ER 532 (park); Gee v. National Trust [1966] 1 WLR 170, CA.

252Mount Cook Land v. Spring House (Freehold) [2001] EWCA Civ 1833, [2002] 2 All ER 822.

253Manners (Lord) v. Johnson (1875) 1 Ch D 673.

254Sharp v. Harrison [1922] 1 Ch 502, Astbury J.

255German v. Chapman (1877) 7 Ch D 271, 276–277, James LJ; Elliott v. Safeway Stores [1995] 1 WLR

1396.

256See below [34.11ff].

6.Proprietary covenants

[32.42] It is possible to word a covenant so that it binds only the original owner or so as to extend to any future owner. Endurability against a buyer depends upon the contractual wording showing that the latter is intended. To use the old phrase, there must be “an intention to bind the servient land”. Thus in Rogers v. Hosegood a covenant entered into “with the intent that it might so far as possible bind the premises thereby conveyed and every part into whosesoever hands the same might come” created a valid restrictive covenant.257 Before 1926, a covenant was presumed to be personal only,258 so it was necessary to include a reference to “assigns” (that is buyers).259 The 1925 legislation reversed the presumption,260 so that if a particular covenant relates to land owned by the covenanting party,261 it is presumed to be proprietary unless it is stated that it is intended to be personal.262

N. POSITIVE OBLIGATIONS BETWEEN FREEHOLDERS

[32.43] Neighbours often wish to create three kinds of positive burdens on land: to carry out work, provide services, or make payments.263 Our law remains defective, for as it stands there is no mechanism by which these burdens can be imposed on future neighbours. The basic rule will be considered before the means of avoidance – estate rentcharges, leasehold schemes and commonholds.264

1.Burden does not pass

[32.34] In Rhone v. Stephens265 the House of Lords reconfirmed the old established rule that the burden of a positive covenant cannot pass.266 When Walford House was split in 1960, the owner of the main house covenanted with the purchaser of the cottage (which formed one wing of it) to maintain the roof. Both parts changed hands several times. The Rhones, current owners of the cottage, were held not to be entitled to enforce the covenant against Mrs Stephens, the current owner of the house.

257[1900] 2 Ch 388, CA.

258Re Fawcett & Holmes’ C (1889) 42 Ch D 150, CA; Groves v. Loomes (1885) 55 LJ Ch 52.

259Powell v. Hemsley [1909] 2 Ch 252. Pre-1926 “heirs” related to freehold land, whereas “executors and administrators” took leaseholds.

260LPA 1925 s 79(3) (new in 1924); Shepherd Homes v. Sandham (No 2) [1971] 1 WLR 1062, 1066, Megarry J.

261Tophams v. Sefton [1967] 1 AC 50, 73, Lord Upjohn (no land benefitted); LPA 1925 s 79(2) (true restrictive covenants).

262S 79 operates subject to any contrary intention expressed or (despite its wording) deduced from the words of the conveyance: Re Royal Victoria Pavilion, Ramsgate [1961] Ch 581, Pennycuick J; Lynnthorpe Estates v. Sidney Smith (Chelsea) [1990] 1 EGLR 148, 152, Warner J; on appeal [1990] 2 EGLR 131, CA; Morrells of Oxford v. Oxford United FC [2001] Ch 459, CA (“vendors not to permit” – personal).

263Law Com 127 (1984), [6.6–6.10].

264See below [32.53ff].

265[1994] 2 AC 310, HL; SH Goo [1993] Conv 234; NP Gravells (1994) 110 LQR 346; M Codd (1993) 137 SJ 970; J Snape [1994] Conv 477; L Tee [1994] CLJ 446; S Gardner [1995] CLJ 60, 63–68.

266Except by statute: Fortescue v. Lostwithiel & Fowey Rly Co [1894] 3 Ch 621.

Passage of the benefit presented no difficulty,267 but a successful action was precluded by the fact that the burdened land had been sold. Ownership of land could be negated if it was possible to impose expensive duties on it.

The law remains firmly settled. Entry on a charges register does not make a positive covenant bind later proprietors.268 The burden of a covenant to maintain a hedge cannot run so as to bind successors in title even if the obligation is created in a statutory inclosure award.269 Neither does an obligation to contribute to cost of maintenance of common parts on a housing estate.270 Other examples of positive covenants involving expenditure of money271 are fencing, cleaning a cesspool, paying water rates, contributing to the cost of a road,272 and repairing.273

2.Limitation of Tulk v. Moxhay

[32.35] Tulk v. Moxhay274 enabled covenants to pass to buyers with notice. Since the remedy granted was a negative injunction,275 it only acted to stop building and prevent alteration in the character of the square. Lord Langdale MR indicated that Moxhay could to some extent be compelled to maintain the square as a garden,276 but on appeal Lord Cottenham LC did not refer to the precise terms of the injunction. Thus the report of the case poses this question: was the doctrine inherently and immediately limited to negative covenants?277 One or two cases did permit the enforcement of positive covenants,278 but in 1881 Haywood v. Brunswick PBS laid down that a positive repairing covenant was outside the scope of the equitable doctrine.279

3.Positive burdens can be disclaimed after insolvency

[32.46] The value of land can be eaten up by imposing onerous covenants or indemnity obligations. On insolvency land subject to positive covenants can be disclaimed by the trustee in bankruptcy or liquidator.280 When the land passes to the Crown as

267See below [32.51].

268Cator v. Newton [1940] 1 KB 415, CA.

269Marlton v. Turner [1998] 3 EGLR 185 CA.

270Thamesmead v. Allotey [1998] 3 EGLR 97, CA.

271Hall v. Ewin (1887) 37 Ch D 74, 79, Cotton LJ.

272Austerberry v. Oldham Corp (1885) 29 Ch D 752; E & GC v. Bate (1935) 79 LJ News 203; Cator v. Newton [1940] 1 KB 415, CA.

273Haywood v. Brunswick PBS (1881) 8 QBD 403, CA; Re Fitzherbert-Brockhole’s Agreement [1940] Ch 51; Rhone v. Stephens [1994] 2 AC 310, HL

274(1848) 2 Ph 774, 41 ER 1143.

275Law Debenture Trust Corp v. Ural Caspian Oil Corp [1993] 1 WLR 138, Hoffmann J; reversed on another point [1995] Ch 152, CA.

276(1848) 18 LJ Ch 83, 86–87.

277C Bell [1981] Conv 55; R Griffith [1983] Conv 29.

278Morland v. Cook (1868) LR 6 Eq 252 (rentcharge); Cooke v. Chilcott (1876) 3 Ch D 694, Malins V-C (supply of water); on appeal (at 703) the case was decided on the admission of liability.

279(1881) 8 QBD 403, CA; London & SW Rly v. Gomm (1882) 20 Ch D 562, CA (covenant to retransfer); Clegg v. Hands (1889) 44 Ch D 503, 506, Bristowe V-C; Powell v. Hemsley [1909] 2 Ch 252; Simpson v. AttGen [1904] AC 476, HL (no duty to maintain locks); London CC v. Allen [1914] 3 KB 642, 653, 663–664; Smith v. Colbourne [1914] 2 Ch 533, CA (block up windows).

280Old law: Re Blackburn & District Benefit BS ex p Graham (1889) 42 Ch D 343, CA; British General Insurance Co v. Att-Gen [1945] LJ NCCR 113; RE Megarry (1946) 62 LQR 223; Re Nottingham General Cemetery Co [1955] Ch 683 (cemetery full to capacity and with onerous maintenance obligations).

bona vacantia, it is still burdened by the repair obligations.281 Since the Crown will not want it on those terms, the Treasury Solicitor may serve a notice to disclaim it,282 causing an escheat. When land returns to the Crown it is shorn, this time, of the onerous burdens attached to the former estate. Others interested in the land may apply to the court for a vesting order if they are prepared to accept the burden.283

4.Reform

[32.47] There have been numerous complaints about the state of the law, ranging from academic opinion,284 through the Wilberforce Committee,285 to early Law Commission reports.286 However, attention must now focus on the Law Commission Report on The Law of Positive and Restrictive Covenants published in 1984,287 which continues the campaign against the restrictive/positive divide and proposes the creation of a uniform statutory scheme of land obligations. Further work is to be undertaken on this important proposal, though it needs to be broadened out to include easements.

5.Positivity generally a bar to easement status

(1) General bar

[32.48] If a right throws an expense on to the burdened owner, this prevents recognition as an easement, since easements must be negative in nature. They must not entail the servient owner in spending money.288 This applies primarily to affirmative easements though it is equally true of easements creating restrictions. One can have a right to light but not, sadly, a right to have one’s windows cleaned.

A right to a supply of water claimed in Rance v. Elvin would have required the servient owner to pay the charges of the water company. The negative aspect of the right – to have whatever water came into the pipe pass through it – was allowed on appeal,289 but the duty to supply water was not. Problems were overcome by allowing a restitutionary claim for reimbursement of money spent on water charges. Similarly an easement cannot impose an obligation to repair on the servient owner,290 so a canal owner is not obliged to carry on repairing the locks long after the canal has lost its

281Companies Act 1985 s 654.

282Ss 656–658, 686; DW Elliott (1954) 70 LQR 25 (Eastville Cemetery, Bristol).

283IA 1986 ss 178–182 (companies), 315–321 (individuals); Hackney LBC v. Crown Estates Commissioners (1996) 72 P & CR 233, Knox J.

284EH Scammell (1954) 18 Conv (NS) 546.

285Report of Committee on Positive Covenants (1965) Cmnd 2719; JF Garner (1966) 110 SJ 860.

286Law Com 11 (1967); HW Wilkinson (1967) 30 MLR 681; Law Com WP 36 (1971); HWR Wade [1972B] CLJ 157; A Prichard (1973) 37 Conv (NS) 194.

287Law Com 127 (1984); P Polden (1984) 47 MLR 566; HW Wilkinson (1984) 270 EG 1154; SB Edell [1984] JPL 222, 317, 401, 485; HW Wilkinson (1984) 134 NLJ 459, 481; HW Wilkinson [1988] Conv 157.

288Cheshire’s categorisation (as an aspect of the need for an easement to be capable of forming the subject matter of a grant) is suspect since a deed could grant positive and negative rights but only the negative part is an easement: Cheshire & Burn (16th ed), 577.

289(1985) 50 P & CR 9, CA; Duffy v. Lamb (1998) 75 P & CR 364, CA (electricity).

290Austerberry v. Oldham Corp (1885) 29 Ch D 752 (road); Jones v. Pritchard [1908] 1 Ch 630, 637 (chimney flue, bridge obiter); Crow v. Wood [1971] 1 QB 77, 84, Lord Denning MR.

viability.291 There is no duty on the burdened owner to repair the land which he owns to make it suitable or convenient for use by the benefitting neighbour,292 and he is not an occupier so he does not attract tort liability.293 If the servient owner does repair, the work must be done properly.294 A benefitted owner may enter and do work to enable him to exercise the right granted,295 for example by making up a road296 or repairing it.297 This right is often an express addition to the terms of the easement.

(2) Fencing

[32.49] By way of exception, positive rights to fencing can be created by prescription.298

6.Positive covenants – original parties

[32.50] There is nothing to stop the current owner of land contracting that he will carry out positive work. It is also possible that he agrees to create an extended liability by agreeing that he will accept liability if a future owner of the burdened land, who is not himself liable,299 commits a breach. Continuing liability exists under post-1925 covenants if they relate to any land of a covenantor,300 but it is generally better to curtail this continuing liability – expressly or by implication301 – so as to make the covenant bite only during land ownership.

7.Positive covenants – benefit

[32.51] The benefit of a positive covenant may pass at law. In Packenham’s case302 P sued in 1369 for breach of a covenant by a prior to say divine service weekly which had

291Simpson v. Att-Gen [1904] AC 476, 483, Lord Macnaghten.

292Pomfret v. Ricroft (1669) 1 Wms Saund 321, 85 ER 454; Taylor v. Whitehead as above; Colbeck v. Girdler’s Co (1876) 1 QBD 234; Duke of Westminster v. Guild [1985] QB 688, CA; P Jackson [1985] Conv 66; Stokes v. Mixconcrete (Holdings) (1978) 38 P & CR 488, CA (make up road).

293Holden v. White [1982] QB 679, CA; K Stanton (1982) 98 LQR 541; R Griffith [1983] Conv 58;

Greenhalgh v. British Railways Board [1969] 2 QB 286, CA; McGeown v. Northern Ireland Housing Executive [1995] 1 AC 233, HL (public rights).

294Saint v. Jenner [1973] Ch 275, CA.

295Miller v. Hancock [1893] 2 QB 177, 182, Kay J.

296Newcomen v. Coulson (1817) 5 Ch D 133, CA; Jones v. Pritchard [1908] 1 Ch 630, 638; Taylor v. Whitehead (1781) 2 Doug 745, 749, 99 ER 475, Mansfield CJ; query the decision in Redland Bricks v. Morris [1970] AC 652, 665E, Lord Upjohn.

297Mills v. Silver [1991] Ch 271, CA. But pouring 700 tons of stone onto a right of way goes far beyond what is a repair: at 286F–287F, Dillon LJ.

298See below [36.27].

299Tophams v. Earl of Sefton [1967] 1 AC 50, 78, Lord Upjohn, 81, Lord Wilberforce; PB Fairest [1966] CLJ 169; Federated Homes v. Mill Lodge [1980] 1 WLR 594, 606B, Brightman LJ; Rhone v. Stephens [1994] 2 AC 310, 322D.

300LPA 1925 s 79 (dating from 1924); there is now no difference between things in existence and those

not.

301Re Royal Victoria Pavilion, Ramsgate [1961] Ch 581, Pennycuick J. Before 1926 this was done by omitting the reference to “assigns”: Groves v. Loomes 53 LT 592, Bacon V-C; Re Fawcett & Holmes’ C (1889) 42 Ch D 150, CA.

302YB 42 Edw III (1369) hil pl 14, f 3 (Prior’s case); Spencer’s case (1583) 5 Co Rep 16a, 17b, 77 ER 72; OW Holmes The Common Law (Boston, 1881), 395–398; Holdsworth’s History vol III, 157–166; AWB Simpson History of the Land Law (Clarendon Press, 2nd ed , 1986), 140–141.

been made with his great grandfather and which was now enforced by P as purchaser of the manor.303 More recently, in Smith & Snipe’s Hall Farm v. River Douglas Catchment Board,304 the Board covenanted with the owner of land adjoining the Eller Brook to maintain a wall to stop the brook flooding. The farm was sold to John Smith with the benefit of this agreement and the Board was liable to him. Covenants only pass with land benefitted by the obligation,305 so that without the land no benefit can pass. Covenants may be attached to land because the covenant benefits certain land,306 or otherwise because it affects the nature, quality, value, or mode of using the land.307 Examples are protection of low-lying farm land from flooding, and a guarantee of the structural integrity of a new house.308

At least since 1925, the effect is much like annexation of a restrictive covenant though without any special wording at the time of creation.309 Passage is automatic on sale,310 and for post-1925 covenants follows any division, lease or sublease, and also passes to an occupier.311

8.Chains of indemnity

[32.52] Original covenanting parties should take an indemnity from the person buying the land,312 because they will remain liable for breaches caused by future owners.313 It is usually express. Enforceability of positive obligations may be secured over long periods, but only so long as each person in the chain remains alive, solvent, and traceable. Positive and indemnity covenants can be referred to on the proprietorship register of the title affected, but entries must be removed if the burdened title is sold and the covenant ceases to bind the current owner – the entry being a warning of the need to obtain an indemnity covenant on sale.314

303Apparently the covenant did not mention assigns.

304[1949] 2 KB 500, CA; EH Scammell (1954) 18 Conv (NS) 546, 553–556; Amsprop Trading v. Harris Distribution [1997] 1 WLR 1025.

305Congleton v. Pattison (1808) 10 East 130, 103 ER 725 (covenant to hire workers only within the Parish; no benefit to the land).

306Smith at 516, Denning LJ.

307Dyson v. Forster [1909] AC 98, 102, Lord Macnaghten (covenant not to let down surface did enhance the value of the surface).

308Marchant v. Casewell & Redgrave [1976] JPL 752.

309LPA 1925 s 78; Rogers v. Hosegood [1900] 2 Ch 388, 394, Farwell J at first instance (express wording required before 1926; can be excluded); Shayler v. Woolf [1946] Ch 320, CA (covenant to supply bungalow with water; passed without mention of assigns); on annexation see below [34.25ff].

310Griffith v. Pelton [1958] Ch 205.

311Smith & Snipe’s Hall [1949] 2 KB 500, CA (farming by wholly owned company); Williams v. Unit Construction Co (1955) 19 Conv (NS) 262, CA (sub-tenant). The old law only allowed covenants to pass with the identical legal estate.

312TRW Steering Systems v. North Cape Properties (1995) 69 P & CR 265, CA; Radford v. De Froberville

[1977] 1 WLR 1262, Oliver J.

313Re Poole & Clarke’s C [1904] 2 Ch 173, CA.

314DLRR 2003 rr 65–66.