No pain, no gain: the benefit and burden principle
There is a general rule in property law that successors in title will not be bound by the burden of a positive covenant — such as a positive payment obligation. Of course, as with most rules in life, there are exceptions — the exception of note in this case being the equitable mutual benefit and burden principle.
The principle was first established in 1957 in a case that concerned a positive covenant to pay towards the cost of maintaining a private road. The High Court held that while a positive covenant (to pay) did not generally bind successors, the obligation could be enforced against successors who were enjoying the benefit of any associated rights; i.e. if they were using the road, they had to pay to maintain it…
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