House divided into two separate dwellings — One part sold off — Conveyance to defendant’s predecessors — Dispute as to ownership of parts of roof — Responsibility for maintenance of roof under the conveyance — County court holding that defendant owned roof and liable in nuisance for failure to maintain — Court of Appeal holding that defendant owned roof — Whether plaintiffs having cause of action in nuisance or negligence against defendant — Whether rule that benefit of covenant and not its burden running with the land should be modified — Whether pure principle of benefit and burden applicable where one property divided into two — Appeal by defendant allowed
A property, known as Walford House, Cambwich, near Bridgwater, Somerset, was owned by G. In 1960, he divided it into two separate dwellings and by a conveyance dated August 27 1960, he sold one of those dwellings, retaining the name Walford House for the dwelling he kept.
By clause 3, G, as vendor, “covenants for himself and his successors in title owner or occupier … of the property known as Walford House … 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”.
The severed property was called Walford Cottage and eventually became vested in the plaintiffs. Walford House was presently occupied by the defendant. The combined properties were L-shaped. Each limb of the L had a ridged roof. They met at right angles, but at a point well below the ridge of Walford House. The division of the properties was not made simply by severing one limb of the L from the other at their junction; because the living accommodation of Walford Cottage effectively extended the vertical limb of the L downwards so that it partially intruded into the area represented by the lower limb. The plaintiffs argued owing to this intrusion the relevant portion of the roof belonged to the defendant and that the defendant was responsible for its maintenance and the consequences of any failure to maintain it. The defendant said that it was the plaintiffs’ property and their responsibility.
The county court decided that the disputed roof was owned by the defendant. It also held that her failure to maintain it in a weatherproof condition constituted an actionable nuisance. Finally, the court decided that the plaintiffs were entitled to enforce the covenant to repair contained in clause 3 of the 1960 conveyance against the defendant by an application of the pure principle of benefit and burden (whereby obligations passed as a concomitant of the benefits which successors continued to enjoy). The defendant appealed.
Held The appeal was allowed.
1. The principle question arising on the appeal was whether the rule in Austerberry v Oldbam Corporation (1885) 29 Ch D 750, that the burden of positive covenants could not run with the freehold land, in its application to a case where a single residence was long ago divided into two, had been circumvented by the pure principle of benefit and burden: see Tito v Waddell (no 2) [1977] Ch 106 at pp 289-311.
2. On the wording alone of the parcels clause in the 1960 conveyance, it was clear that the plaintiffs owned the roof. However, clause 3 of the conveyance provided that the owners of Walford House would be responsible for maintenance of the roof. The words of clause 3 were unclear but they only had to be altered in minor respects to avoid any possible conflict with the parcels clause. Consequently it was the defendant and not the plaintiffs who was the owner of the disputed roof. That meant the plaintiffs could have no cause of action against the defendant in nuisance or negligence.
3. Alternatively, the plaintiffs sought to enforce the covenant to repair contained in clause 3 by the application of the pure principle of benefit and burden. They could not enforce it by virtue only of the covenant, the subsequent conveyances of Walford House and the subsequent assignments of the benefit of the covenant. It had been established by the Austerberry case that, although the benefit of positive covenants which touched and concerned other land could run with freehold land, the burden of them could not. It was hard to justify the retention of that rule in cases where, as here, each successor in title of the covenanter, by means of the indemnity that he was invariably required to give to his vendor, had notice of the covenant.
4. If the pure principle of benefit and burden applied to a transaction such as that effected by the 1960 conveyance, it would very likely lead to the wholesale circumvention of the rule in Austerberry.
5. The benefits relied on by the plaintiffs for invoking the pure principle of benefit and burden were, first, the easement of eavesdrop for the passage of rainwater from the roof of Walford House over the disputed roof and, second, the easement of support for the roof of Walford House by the disputed roof. Those benefits were technical or minimal and not a sufficient basis for invoking the principle. Further a benefit which was not specifically reserved could hardly be one to which the parties attached importance.
David Spens (instructed by Alletsons, of Bridgewater) appeared for the defendant; John Virgo (instructed by Pardoes, of Bridgwater) appeared for the plaintiff respondents.
