BPP University College Of Professional Studies Limited (BPP)
Land Law
Summary
Summary Passing the benefit and burden in common law (covenants)
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Course
Land Law
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BPP University College Of Professional Studies Limited (BPP)
Two page chart showing passing the benefit and burden of covenants. includes all key points, cases and statutes. Designed for use during open book and MCQ exams - information is set out in chart and bullet point form so can be accessed quickly.
Available in covenant and land law bundles.
BPP University College Of Professional Studies Limited (BPP)
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Land Law
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COMMON LAW
▪ General rule: Burden does NOT pass to successor (Austerberry v Oldham corporation
1885)
▪ The effect of the rule is that the LIABILITY of the covenant remains with the original
COVENTOR.
▪ Primarily applied to positive covenants
CONTINUING LIABILTIY OF ORIGINAL COVENTOR
▪ At common law, a successor covenantor cannot be sued.
▪ However, the burden doesn’t disappear, it remains with the original covenantor.
(continuing liability of the original covenantor)
▪ The original covenantor can be sued for breach by their successors.
▪ Usually this is in the wording of the deed, but if not, it is applied in LPA 1925 s 79(1)
▪ Only remedy available is DAMAGES.
▪ As part of the sale process, the original covenantor should require its successor to
enter into an indemnity covenant – promising to comply with covenant and
indemnify for any loss incurred as a result of breach.
▪ An indemnity covenant must be sought every time burdened property is sold.
▪ There must be a CHAIN of indemnity – then each person in chain as a direct
enforcement method.
▪ Must be complete chain for it to work
▪ Chain of indemnity is only as strong as its weakest link.
LIMITED EXEPTION TO THE RULE THAT THE BURDEN DOESN’T PASS – THE DOCTRINE OF
MUTUAL BENEFIT AND BURDEN. (RULE IN HALSALL V BRIZELL)
▪ Enables the burden of a covenant to pass to a successor at common law – where th
covenantee grants to the covenantor a benefit in the nature of an easement and
imposes a connected burden.
▪ Original covenantee grants a right to park on covenantee’s land. In same transfer
deed – the covenantor covenants to contribute to the cost of maintaining the
parking area it has a right to use. BENEFIT – right to park | BURDEN – contribute
towards maintenance
3 RULES:
1. Clear link between burden and benefit.
(no general rule that someone who takes a benefit under a deed must submit to
any burden which it imposes) Thamesmead town v Allotey
2. Must be genuine choice as to whether or not to take the benefit. (cannot be
theoretical – if no real choice to take benefit, then normal common law rules
apply and successor doesn’t take the burden) Davies v Jones 2009
3. Benefit and burden must have been conferred in the same transaction
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