Sale of part — sharing the burden of positive covenants

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By Richard Willcox

The Court of Appeal has held that a purchaser who obtains part of a property that has the benefit of a right of way must assume the burden of contribution to that right of way, appropriate to the part of the property that he has acquired.

Dobson Park Properties Ltd (DPPL) owned an estate, which consisted of a number of industrial units bordering a private road, known as Roadway 4, and a number of other private roads.

In September 1986, DPPL sold all of the private roads and some additional land to Mr Elwood, but reserved a right for DPPL and its successors to use them. Mr Elwood agreed to maintain all of the roads and in return DPPL agreed that it and its successors would pay the maintenance costs incurred by Mr Elwood in relation to Roadway 4…

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