Real Estate Litigation Update — April 2014: balancing the scales — benefits and burdens
By Kerra Jelbert
More than 50 years ago, the court held that a successor in title to the original owner could not enjoy the use of a road (the benefit) without making a contribution to its maintenance (the burden) (Halsall v Brizell  Ch 169). Such a positive obligation (as opposed to a promise not to do something) is not enforceable against successors in title to the original ‘promisor’. This ‘benefit and burden’ rule developed to alleviate the principle that a person cannot be bound to perform a positive obligation promised by their predecessors in title by making enjoyment of a benefit conferred by a covenant conditional on compliance with any corresponding positive obligation.
In Goodman and others v Elwood  EWCA Civ 110, the Court of Appeal revisited and developed this principle in the context of a successor in title of part of burdened land.
Goodman (G) disputed liability to perform a positive obligation to contribute to the cost of maintaining an access road at an industrial estate owned by E, over which he had a right of way…
Click on the link below to read the rest of the Pennington Manches briefing.
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