Penningtons Manches

UK 200 2014 position: 60

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 [1957] 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 [2013] 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…

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