House divided into separate dwellings and sold — Conveyance stipulating that vendor would maintain roof lying above property conveyed — Responsibility for roof — Plaintiffs requiring vendor’s successors in title to perform covenant to maintain roof — Whether covenant running with the land — Trial judge finding for plaintiffs — Court of Appeal allowing defendant’s appeal — House of Lords dismissing plaintiffs’ appeal
The roof which covered the premises of Walford House, Cambwich, near Bridgewater, Somerset, also covered Walford Cottage. Both properties had been in common ownership until Walford Cottage was sold. The vendor covenanted, inter alia, that he and his successors in title would maintain to the “reasonable satisfaction of the purchasers … such part of the roof of Walford House as lies above the property conveyed in wind and watertight condition”.
Since 1960 both properties had been sold. The appellant plaintiffs were now the owners of Walford Cottage and the respondent defendant was the executrix of Walford House’s last owner. The judge had ordered the owner of Walford House to pay damages to the owners of the cottage for breach of the covenant to keep that part of the roof of Walford House lying above Walford Cottage wind and watertight. The Court of Appeal reversed that decision: [1993] EGCS 3. The owners of Walford Cottage appealed.
Held The appeal was dismissed.
1. Between landlord and tenant the burden and the benefit of a covenant which touched or concerned the land — and was not merely collateral — ran with the reversion and the term at law whether it was positive or restrictive.
2. However, as between persons interested in land other than as landlord and tenant, the benefit of the covenant might run with the land at law, but not the burden: see Austerberry v Oldham Corporation (1885) 29 Ch D 750.
3. Thus, clause 3 of the 1960 conveyance, despite its express terms, did not confer on the owner for the time being of Walford Cottage the right at common law to compel the owner for the time being of Walford House to repair the roof or to obtain damages for breach of the covenant to repair.
4. Equity could prevent or punish the breach of a negative covenant which restricted the user of land or the exercise of other rights in connection with land. Restrictive covenants deprived an owner of a right which he could otherwise exercise. However, equity could not compel an owner to comply with a positive covenant entered into by his predecessors in title without flatly contradicting the common law rule that a person could not be made liable upon a contract unless he was a party to it.
5. While the House had been invited to over rule the decision of the Court of Appeal in Austerberry (supra), to do so would destroy the distinction between law and equity. To enforce a positive covenant would be to enforce a personal obligation against a person who had not covenanted. To enforce a negative covenant was only to treat the land as subject to a restriction.
James Munby QC and John Virgo (instructed by Pardoes, of Bridgwater) appeared for the appellants; David Spens (instructed by Alletsons, of Bridgwater) appeared for the respondents.