Covenants — Freehold — Positive covenant — Whether positive covenant enforceable against successor in title to covenantor — Whether taking incidental benefit invokes all burdens under deed — Whether successor in title can choose to take benefit
Thamesmead, a
large estate developed by London County Council and their successors, Greater
London Council, was ultimately transferred to the plaintiff company. In 1988 Mr
and Mrs B, who were tenants of a property on the estate, acquired the property
under the right to buy legislation; the transfer to them contained positive
covenants, one of which required them to contribute to the plaintiff’s expenses
in relation to the repair and maintenance of, inter alia, roads, footpaths,
landscaped and community areas. The 1988 transfer granted no rights over the
landscaped and community areas. In 1992 the defendant acquired the property. In
the court below the judge disallowed part of the plaintiff’s claim for £95.91
for the reimbursement of expenses, deciding that he was bound by Rhone v
Stephens (Executrix) [1994] 2 EGLR 181 to relate the
contributions to the benefits that a defendant has chosen to exercise. In
particular, expenses relating to the communal areas were disallowed. The
plaintiff appealed.
v Stephens suggests that there are two requirements for the
enforceability of a positive covenant against a successor in title: first, that
the condition of discharging the burden must be relevant to the exercise of the
rights that enable the benefit to be obtained; and second, that the successors
in title must have the opportunity to choose whether to take the benefit or,
having taken it, to renounce it and thereby escape the burden, and that the
successors in title can be deprived of the benefit if they fail to assume the
burden. It cannot be sufficient that the taking of an incidental benefit should
enable the enforcement of a burden against a person who has not himself
covenanted to undertake the particular burden. A successor in title must be
able as of right to obtain the relevant benefit. There was no right for the
defendant to use the communal areas, and no obligation on the plaintiff to
maintain them. When a successor in title takes a title, he is not liable for a
burden under a positive covenant, regardless of whether he has actually chosen
to enjoy the benefit. Successors in title can choose whether to take the
benefit.
The following
cases are referred to in this report.
Austerberry v Oldham Corporation (1885) 29 ChD 750; 1 TLR 473, CA
Halsall v Brizell [1957] Ch 169; [1957] 2 WLR 123; [1957] 1 All ER
371
Ives (ER)
Investment Ltd v High [1967] 2 QB 379;
[1967] 2 WLR 789; [1967] 1 All ER 504, CA
Rhone v Stephens (Executrix) [1994] 2 AC 310; [1994] Ch 310;
[1994] 2 WLR 429; [1994] 2 All ER 65; [1994] 2 EGLR 181; [1994] 37 EG 151, HL
Tito v Waddell (No 2) [1977] Ch 106; [1977] 2 WLR 496; [1977] 3
All ER 129
Tulk v Moxhay (1848) 2 Ph 774; [1843–60] All ER Rep 9
This was an
appeal by the plaintiff, Thamesmead Town Ltd, from a decision of Judge Colyer
QC, sitting in Dartford County Court, who had disallowed part of the
plaintiff’s claim for service charges against the defendant, Michael Nimoi
Allotey.
Patrick Routley
(instructed by Walter Stein & Kirk) appeared for the appellant; Manjit
Panesar (instructed by Hudgell & Partners) represented the respondent.
Giving
judgment at the invitation of Butler-Sloss LJ, PETER GIBSON LJ
said: At law it has long been the rule that the benefit of a covenant, whether
positive or negative, made with a covenantee having an interest in the land to
which it relates, runs with the land, but that the burden of a covenant does
not, except in the case of a lease. Although equity relaxed the rigours of the
common law by the doctrine of Tulk v Moxhay (1848) 2 Ph 774, it
did so only in relation to restrictive covenants. It was held by this court in Austerberry
v Oldham Corporation (1885) 29 ChD 750 that the Tulk v Moxhay
doctrine would not be extended so as to bind in equity a purchaser taking with
notice of a positive covenant which did not run with the land at law. The House
of Lords, 100 years later, in Rhone v Stephens (Executrix) [1994]
2 AC 310*, was invited to overrule that decision, but the rule in the Austerberry
case was affirmed. However, at least one exception to the rule has been
recognised in that a successor in title to a covenantor may be held not to be
entitled to take the benefit of a transaction without undertaking the burden
imposed by the transaction. The scope and application of that exception are the
subject-matter of this appeal.
*Editor’s
note: Also reported at [1994] 2 EGLR 181
The facts are
comparatively simple. After the second world war London County Council and
their successors, Greater London Council, constructed a large estate of houses
and flats with shops and ancillary community facilities, which became known as
Thamesmead. All the houses and flats were let to tenants on periodic tenancies
and the tenants were given ancillary rights to use the roads, paths and
communal gardens on the estate. By the Housing Act 1980 (now the Housing Act
1988) tenants were given the right to buy the freehold of their homes. On April
1 1986 all land at Thamesmead that had been vested in Greater London Council
became vested in London Residuary Body. On July 27 1987 all land at Thamesmead
owned by London Residuary Body was transferred to the plaintiff, Thamesmead
Town Ltd, but by the Local Government Reorganisation (Right to Buy) Order 1986,
the right of secure tenants in Thamesmead to buy their homes was preserved as
against the plaintiff.
In 1988 Mr and
Mrs Boorman, the tenants of 29 Fieldfare Road (the property) in Thamesmead,
exercised their right to buy the property from the plaintiff. By a transfer
dated November 7 1988 (the 1988 transfer) the property was transferred to them,
together with the rights referred to in the first schedule to the 1988
transfer. Those rights included the right to use the roads and paths owned by
the plaintiff on
Thamesmead), the right to the free passage and running of water, soil, gas,
electricity and other services through the sewers, drains, pipes, wires and
cables in or under the adjoining parts of the estate and the right to natural
and subjacent support for the property. By clause 3 of the 1988 transfer, Mr
and Mrs Boorman, for themselves and their successors in title, covenanted with
the plaintiff, to the intent that the covenant should bind the property to
whosoever’s hands the property might come for the benefit of so much of the
remainder of Thamesmead as for the time being remained vested in the plaintiff
or such parts as might thereafter be sold by the plaintiff with the benefit of
that covenant, that Mr and Mrs Boorman or their successors in title would
observe and perform the restrictions and conditions then set out. There were
six restrictive covenants and three positive covenants. The first of the
positive covenants, clause 3(B)(i), was (so far as material):
To contribute
and pay to [the plaintiff] on demand from time to time a fair proportion of all
fees expenses and costs of repairing maintaining replacing removing and
cleansing (including the fees expenses and costs of [the plaintiff’s] employees
and agents in connection therewith):
(a) all roads
footpaths or access ways sewers drains pipes cables or other apparatus on … the
Estate …
(b) the
landscaped and communal areas on the Estate which are maintained from time to
time by [the plaintiff] including the grass trees shrubs plants and other
vegetation thereon and equipment used therein or in connection therewith such
proportion to be agreed between the Transferee [defined as Mr and Mrs Boorman
and their successor in title] and [the plaintiff] or in the case of dispute
determined by [the plaintiff] or such qualified person (who may be one of its
own officers) as [the plaintiff] may appoint.
Clause 6 of
the 1988 transfer provided:
In the event of
disposal of the Property to any person other than [the plaintiff] … the
Transferee will include in the … Transfer a provision that his successor in
title will enter into a deed of covenant in similar terms to … clauses 3 [and
6] … with [the plaintiff] and that any successor in title will undertake that
on any other subsequent transfer of the Property to any person other than [the
plaintiff] a similar provision … will be included in the subsequent … transfer.
It is to be
noted that the 1988 transfer did not purport to give any rights to the
transferee over the landscaped and communal areas on the estate maintained by
the plaintiff, nor did it require the plaintiff to maintain such areas.
The Land
Registry entry in respect of the property recorded in the charges register that
the 1988 transfer contained restrictive covenants, but they were not specified.
Mr and Mrs Boorman, on April 30 1992, transferred the property to the
defendant, Michael Allotey, but, in breach of clause 6 of the 1988 transfer,
omitted to include in the transfer to him the provision required by that
clause. The defendant claims to have been unaware of the positive covenant in
the 1988 transfer; but that is of no materiality, as the judge pointed out, as
the defendant’s solicitors, whom he used on the transfer, must either have read
the 1988 transfer or should have done so and he must be taken to have knowledge
of the covenants in the 1988 transfer: see section 199(1) of the Law of
Property Act 1925.
About a year
after entering into possession of the property, the defendant became aware that
the plaintiff was claiming that the defendant was liable under clause 3(B)(i).
He was told that he owed the plaintiff about £200. He refused to pay. At the
beginning of September 1993 the plaintiff issued a summons in Dartford County
Court against the defendant, claiming service charges in the sum of £211.10,
subsequently reduced in the plaintiff’s reply to £159.24, being £95.91 in
respect of the period May 15 1992 to March 31 1993 and £63.33 in respect of the
period April 1 1993 to September 30 1993. The plaintiff abandoned the claim in
respect of the latter period before the trial.
Judge Colyer
QC, who tried the case, set out in his judgment the largely uncontroversial
facts and referred to several authorities and, in particular, to the decision
of Upjohn J in Halsall v Brizell [1957] Ch 169 and to Rhone
v Stephens. Guiding himself in particular by the only reasoned speech in
the House of Lords in Rhone v Stephens, that of Lord Templeman,
with whom Lord Oliver, Lord Woolf, Lord Lloyd and Lord Nolan agreed, the judge
said:
It was part
of the reasoning of Lord Templeman and, therefore, of the House of Lords which
led him and them to the decision in Rhone v Stephens that Halsall
v Brizell was good law, but that Halsall v Brizell caught
or applied only to situations where the exercise of the right was made
conditional upon the payment of contributions to costs, which contribution was
directly related to the cost of providing the facility to exercise the right.
— and a little
later —
Reluctantly I
am forced by the House of Lords’ decision in Rhone v Stephens to
conclude that although the exercise of a right may be made expressly or
impliedly conditional upon the payment of a contribution, that does not mean
automatically that the person against whom the contribution is claimed must
pay. That person must pay only if he or she has chosen to exercise the relevant
right.
Then he said a
few lines later:
Rhone v Stephens makes it clear that one has to look separately at
the benefits and obligations and relate the contributions to the benefits and
their Lordships reject the simpler approach that one must, if one takes the
benefit under a deed, accept the whole of the burdens arising under that deed.
The judge then
turned to see what parts, if any, of the sum claimed could be said to be
conditional upon the payment of contributions to costs. He said that some
rights clearly were conditional and some, notably roads and sewerage, had been
enjoyed (in the sense of used) by the defendant. He said that some positive use
or taking of the benefit was necessary and that had to be proved by the
plaintiff. The claim of £95.91 was made up of three elements: janitorial services;
maintenance of communal areas; and maintenance of unadopted areas, which in
turn was subdivided into paving, sewers, lighting, roadworks and fencing; to
this was applied an administrative charge of 10% and then VAT. Janitorial
services were, on the plaintiff’s evidence, manpower costs, and maintenance
meant cost of materials, not including labour. The judge allowed the following
in relation to the sums claimed. In respect of janitorial services, the sum
claimed of £54.69 was allowed only to the extent of £25; the sum claimed in
respect of maintenance of communal areas, £6.34, was not allowed at all; and
the sum of £13.17 claimed in respect of maintenance of unadopted areas, was
allowed only to the extent of £7.23. Thus, of the £74.20 claimed, £32.23 was allowed,
and, with the addition of the administration charge and VAT, of the total sum
claimed of £95.91, £41.65 was allowed. The judge found that the 10%
administration charge was reasonable in the context of a miscellany of services
that were time-consuming to arrange and supervise. He found that the only
practicable method of costing was that which was adopted by the plaintiff, that
is, to divide the entire cost of the work done over the whole estate (or, where
it could reasonably be said to be a type of work that related only to a
specific area or a section of the estate, over that area or section) among all
of the units within the whole estate, or within the relevant area or section,
as appropriate. The judge refused to award the plaintiff interest and he gave
judgment in favour of the plaintiff for the sum of £41.65. The defendant had
counterclaimed for a declaration that he was not liable to pay the plaintiff
any sum because the claim was based on a positive covenant that he had not
given. The judge dismissed the counterclaim. He ordered the defendant to pay
half the plaintiff’s costs. He gave both parties leave to appeal.
The amount in
dispute between the plaintiff and the defendant is tiny, but the outcome of the
dispute could affect many who live in Thamesmead. The plaintiff alone appeals
and there is no cross-appeal or respondent’s notice by the defendant. There is
therefore no challenge by the defendant to the finding of the judge that the
roads and sewerage provided by the plaintiff were used by the defendant. I have
to say that it is not apparent to me why the judge rejected the defendant’s
evidence to the effect that he only used Fieldfare Road, which had been
adopted, and that the drains under it were the responsibility of a company
other than the plaintiff. But in the circumstances it is not necessary to go
into these matters nor into the
transfer, in view of the judge’s unchallenged finding that a benefit was taken
in respect of the roads and sewerage.
Mr Patrick
Routley, for the plaintiff, challenges the disallowance by the judge of any sum
in respect of what the judge called the communal areas. They are the areas
referred to in clause 3(B)(i)(b) of the 1988 transfer. Before I consider Mr
Routley’s submissions, it is convenient to look at the relevant authorities.
In Halsall
v Brizell land was sold in building plots, the vendors retaining the
roads and sewers together with a promenade and sea wall. In a separate deed of
covenant in 1851 between the vendors and the owners of the plots that had by
then been sold, it was recited that the retained lands were intended to be left
upon trust to be used and enjoyed by the owners of the plots and their
successors in title. The owners of the plots by the deed covenanted that they
and their successors in title would pay a due proportion of the expenses of
maintenance of the roads, sewers promenade and sea wall, that proportion to be
determined in an annual general meeting of the owners of the plots. The
successors in title of an original covenantor were prepared to pay a
contribution in respect of one plot, but challenged the validity of a
resolution at an annual general meeting requiring them to pay several
contributions, because the building on their plot had been subdivided into
flats. Upjohn J, at p182, said that it was plain that the successors in title
to the covenantors could not be sued on the covenants. However, he continued:
But it is
conceded that it is ancient law that a man cannot take benefit under a deed
without subscribing to the obligations thereunder. If authority is required for
that proposition, I need but refer to one sentence during the argument in Elliston
v Reacher, [(1908) 2 Ch 665 at p669] where Lord Cozens-Hardy MR
observed: ‘It is laid down in Co Litt 230b, that a man who takes the benefit of
a deed is bound by a condition contained in it, though he does not execute it’.
If the defendants did not desire to take the benefit of this deed, for the
reasons I have given, they could not be under any liability to pay the
obligations thereunder. But, of course, they do desire to take the benefit of
this deed. They have no right to use the sewers which are vested in the
plaintiffs, and I cannot see that they have any right, apart from the deed, to
use the roads of the park which lead to their particular house … The defendants
cannot rely on any way of necessity or on any right by prescription, for the
simple reason that when the house was originally sold in 1931 to their predecessor
in title he took the house on the terms of the deed of 1851 which contractually
bound him to contribute a proper proportion of the expenses of maintaining the
roads and sewers, and so forth, as a condition of being entitled to make use of
those roads and sewers. Therefore, it seems to me that the defendants here
cannot, if they desire to use this house, as they do, take advantage of the
trusts concerning the user of the roads contained in the deed and the other
benefits created by it without undertaking the obligations thereunder. Upon
that principle it seems to me that they are bound by this deed, if they desire
to take its benefits.
Two points
should be noted. First, Upjohn J expressed his reasoning as dependent on the
choice of the defendants, so that if they did not desire to take the benefit of
the deed they could not be made liable. Second, Upjohn J only expressly
referred to the choice of the defendants to use the sewers and roads. Nothing,
for example, was said about choosing to take the benefit of the sea wall. But
it is clear that he thought that the defendants were liable to contribute a
proper proportion of all the expenses, including that of maintaining the sea
wall, no doubt because he was applying the simple doctrine that a person named
in a deed cannot take the benefit under a deed without subscribing to its
obligations.
In Tito
v Waddell (No 2) [1977] Ch 106 one of the multifarious issues raised
related to the enforceability against successors in title of the burden of a
positive covenant given by a company to the owners of lands, which contained
deposits of phosphates, to replant the lands, the company by the relevant deeds
containing that covenant being entitled to remove the phosphates. Sir Robert
Megarry V-C considered at length the principle of benefit and burden. After
analysing the authorities he held that in two types of case the burden could be
enforced against the successors in title. One was where what he called ‘the
pure principle of benefit and burden’ applied and he put Halsall v Brizell
into that category. The other was where the benefit was conditional on the
undertaking of the burden. The Vice-Chancellor held that the successors in
title to the company were liable to replant the lands under the pure principle.
The facts of Rhone
v Stephens were that in 1960 the vendor freehold owner of a building
conveyed one part of it (the cottage) to a purchaser and retained the other
part (the house). Clause 2 of the conveyance contained mutual rights and
obligations of support for the cottage and the house. By clause 3 the vendor
covenanted for himself and his successors in title to maintain that part of the
roof that overlay the cottage in wind and watertight condition. Water
thereafter leaked into the cottage from the roof and the successors in title to
the purchaser sued the successors in title to the vendor, relying on the
covenant. The action was held both in this court and the House of Lords to
fail. Lord Templeman, at p322, said:
Mr Munby
[counsel for the appellant] also sought to persuade your lordships that the
effect of the decision in the Austerberry case had been blunted by the
‘pure principle of benefit and burden’ distilled by Sir Robert Megarry V-C from
the authorities in Tito v Waddell (No 2) [1977] Ch 106, at p301 et
seq. I am not prepared to recognise the ‘pure principle’ that any party
deriving any benefit from a conveyance must accept any burden in the same
conveyance. Sir Robert Megarry relied on the decision of Upjohn J in Halsall
v Brizell [1957] Ch 169. In that case the defendant’s predecessor in
title had been granted the right to use the estate roads and sewers and had
covenanted to pay a due proportion for the maintenance of these facilities. It
was held that the defendant could not exercise the rights without paying his
costs of ensuring that they could be exercised. Conditions can be attached to
the exercise of a power in express terms or by implication. Halsall v Brizell
was just such a case and I have no difficulty in wholeheartedly agreeing with
the decision. It does not follow that any condition can be rendered enforceable
by attaching it to a right nor does it follow that every burden imposed by a
conveyance may be enforced by depriving the covenantor’s successor in title of
every benefit which he enjoyed thereunder. The condition must be relevant to
the exercise of the right. In Halsall v Brizell there were
reciprocal benefits and burdens enjoyed by the users of the roads and sewers.
In the present case clause 2 of the 1960 conveyance imposes reciprocal benefits
and burdens of support, but clause 3 which imposed an obligation to repair the
roof is an independent provision. In Halsall v Brizell the
defendant could, at least in theory, choose between enjoying the right and
paying his proportion of the cost or alternatively giving up the right and
saving his money. In the present case the owners of Walford House could not in
theory or in practice be deprived of the benefit of the mutual rights of
support if they failed to repair the roof.
It is apparent
therefore that the House of Lords considered Halsall v Brizell
not to be an example of the pure principle of benefit and burden, which
principle was rejected, but one falling into the Vice-Chancellor’s second
category of conditional benefit.
The reasoning
of Lord Templeman suggests that there are two requirements for the
enforceability of a positive covenant against a successor in title to the
covenantor. The first is that the condition of discharging the burden must be
relevant to the exercise of the rights that enable the benefit to be obtained.
In Rhone v Stephens the mutual obligation of support was
unrelated to and independent of the covenant to maintain the roof. The second
is that the successors in title must have the opportunity to choose whether to
take the benefit or, having taken it, to renounce it, even if only in theory,
and thereby to escape the burden and that the successors in title can be
deprived of the benefit if they fail to assume the burden. On both those
grounds Halsall v Brizell was distinguished. Although Lord
Templeman expressed his wholehearted agreement with Upjohn J’s decision, Lord
Templeman’s description of that decision was limited to the defendant being
unable to exercise the rights to use the estate roads and to use the sewers
without paying his costs of ensuring that they could be exercised. Nothing was
expressly said about the cost of maintaining the sea wall or promenade and it
is a little difficult to see how, consistently with Lord Templeman’s reasoning
and, in particular, the second requirement for the enforceability of a positive
covenant, the cost of maintaining the sea wall would fall within the relevant
principle.
Mr Routley
submits, first, that the judge should have found that the payment of a contribution
in respect of the cost of the repair and maintenance of the communal areas on
the estate was (to quote the notice of appeal):
an implied
condition of the enjoyment by the Defendant of a benefit provided by the
Plaintiff which was an integral part of, or alternatively inseparably linked
to, the property …
Mr Routley
submits that the judge was wrong in law in holding that a positive covenant can
be enforced against the assignee of the covenantor only where the burden of
that covenant is a condition attached expressly or by implication to the
exercise of a reciprocal right granted by the covenantee. He says that the
judge should have held that such a covenant was enforceable against such a
person where the burden of the covenant was a condition attached expressly or
by implication to the enjoyment of a reciprocal benefit granted or provided by
the covenantee, either contained in the same deed or as part of the same
agreement or arrangement. In developing this argument, Mr Routley submitted
that where the burden of a positive covenant is conditional upon a reciprocal
or a relevant benefit, it will be enforced. He pointed out that this is not
restricted to the benefit of rights granted by a deed. That is true. An oral
agreement or arrangement will suffice, as was held in ER Ives Investment Ltd
v High [1967] 2 QB 379. But that is irrelevant, as here the plaintiff
has only the transfer on which it can rely. Mr Routley also pointed out that
the benefits need not be expressly related to a corresponding burden, but can
be related by implication. That is not in dispute. He drew attention to the
fact that Lord Templeman did not use the language of benefit throughout, but
also referred to rights and power. He submitted that this meant that Lord
Templeman was deliberately distinguishing a right or power, upon which a
positive covenant might be made conditional, from the benefit of a covenant.
This led him to submit that the communal areas could be used or enjoyed without
the defendant walking on them and that their mere existence was sufficient to
confer a relevant benefit. Mr Routley pointed to the judge’s comment on the
importance of the provision of services by the plaintiff to the character and
atmosphere of Thamesmead and the advantage to the owners of properties therein
that the value of their properties would be maintained by the continued
provision of such services.
I have no
hesitation in rejecting this argument. Mr Routley seems to me to read far more
into Lord Templeman’s words than could possibly have been intended. Lord
Templeman was plainly seeking to restrict, not enlarge, the scope of the
exception from the rule that positive covenants affecting freehold land are not
directly enforceable except against the original covenantor. Lord Templeman
treated Halsall v Brizell as a case where the right to use the
estate roads and sewers was conditional on a payment of a due proportion of the
maintenance expenses for those facilities. While agreeing with the decision,
Lord Templeman made clear that for a burden to be enforceable it must be
relevant to the benefit. He said that simply to attach a right to a condition
for payment would not render that condition enforceable. Similarly, it is not
possible to enforce every burden in a conveyance by depriving the covenantor’s
successors in title of every benefit that he enjoyed under the conveyance.
There must be a correlation between the burden and the benefit that the
successor has chosen to take. Lord Templeman plainly rejected the notion that
taking a benefit under a conveyance was sufficient to make every burden of the
conveyance enforceable. Further, there is no authority to suggest that any
benefit obtained by a successor in title, once the property has been
transferred to him, to enable the enforcement of a burden under the convenance
is sufficient, even if that benefit was not conferred as of right by the
conveyance. In my judgment, it cannot be sufficient that the taking of an
incidental benefit should enable the enforcement of a burden against a person
who has not himself covenanted to undertake the particular burden. Lord
Templeman’s reference to rights and power suggests that the successor in title
must be able as of right to obtain the relevant benefit. I have already pointed
out that, not only is there no right conferred on the defendant by the 1988
transfer to use the communal areas, but also the plaintiff has no obligation to
maintain those areas.
Mr Routley’s
second argument was that the judge erred in holding that the burden of a
positive covenant is enforceable only if and to the extent that a successor in
title chooses to exercise the corresponding right. That overstates what in fact
the judge did say. He did not use the words ‘to the extent that’. Mr Routley
submits that once a successor in title enters into the transaction by which he
takes title, he is liable regardless of whether he has actually chosen to enjoy
a benefit. He submits that the judge has confused the acquisition of the right
with the exercise of the right. He suggests that any other construction would
lead to an impractical result requiring the plaintiff to monitor the exercise
of rights by persons living in Thamesmead. For my part, I see considerable
force in the commonsense of that argument, but in the light of the authorities
the argument seems to me impossible. As I have already pointed out, in Halsall
v Brizell, at p182, Upjohn J was expressing the relevant principle in
terms that the successors in title could choose whether or not to take the
benefit of the deed. Similarly, in Rhone v Stephens, Lord
Templeman, in distinguishing Halsall v Brizell, expressed himself
in terms that indicated that the successors in title had to have a choice
whether to exercise the right or, having taken the right, whether to renounce
the benefit. Lord Templeman was not expressing himself in terms that the
successors in title had to have a choice whether to acquire the rights at all.
Accordingly, I must reject this second argument also.
It follows
that I would dismiss this appeal, essentially for the reasons given by the
judge. But I cannot forbear to add my voice to the criticisms of the existing
law. There have been numerous calls for reform: see, in particular, the report
of the committee, chaired by Lord Wilberforce, on Positive Covenants
Affecting Land (1965) Cmnd 2719, and the Law Commission’s 1984 report: Transfer
of Land, The Law of Positive and Restrictive Covenants, Law Com No 127. I
respectfully agree with Professor Gravells’ comments in his article on Rhone
v Stephens in [1994] 110 LQR 346, where he said, at p350:
Few would
dissent from the view that in appropriate circumstances positive covenants
should be capable of enforcement against successors in title to the original
covenantor; that enforcement should be through direct means rather than through
indirect means, which are artificial and frequently unreliable; and that the
continued absence of such direct means is inconvenient and potentially unjust.
Since the House of Lords has now clearly ruled out a judicial solution, it is
for Parliament to provide a legislative solution.
HOBHOUSE and
BUTLER-SLOSS LJJ agreed and did not add
anything.
Appeal
dismissed with costs.
