In the recent
decision of Wilkinson and others -v- Kerdene Limited the Court of Appeal has
provided a valuable reminder that successors in title will not necessarily
escape the burden of a positive covenant. As was established in the case
of Halsall -v- Brizell , where a party chooses to enjoy the benefit of
rights granted by a deed they must also accept any corresponding burdens (even
if the two are not expressly linked).
case involved a number of bungalow owners in a holiday village. Some of
the owners were original purchasers and others were successors in title.
Kerdene Ltd had purchased the common parts of the village in 2000 including the
roads, car parks and some of the leisure facilities, and had embarked on a
major program of renovation.
conveyances granted the bungalow owners the right to use the common parts of
the village. They also contained a positive covenant requiring the
bungalow owners to pay a fixed annual sum for maintenance of the common parts.
sought to recover the fixed maintenance payment from the bungalow owners, and
when they refused to pay, it obtained judgment against them.
the Court of Appeal confirmed that the bungalow owners could not enjoy the
benefit of the right to use the common parts without accepting the burden of
paying the maintenance sum. It held that provided there is a sufficient
degree of correlation between the rights being exercised and the positive
obligation pursuant to the same deed then the benefit and burden principle will
apply. It is not necessary for the deed to expressly link the two
was intended to enable the bungalow owners to continue to exercise their rights
over the common parts, albeit that in terms it was a payment for maintenance
and not a fee for the exercise of those rights.
recognised that, where some but not all of the rights are being exercised, the
relevant corresponding obligation can be apportioned accordingly.
However, in this case, because the payment was a fixed annual sum,
apportionment was not possible. It was therefore sufficient that the
payment related in part to the rights that were being exercised for the full
payment to be recoverable.
highlights that it is important to look at the full picture when considering
the obligations imposed by an historic deed to determine to what extent they
remain relevant. For a full transcript of the case please visit: http://www.bailii.org/ew/cases/EWCA/Civ/2013/44.html
by Tom Evans, Solicitor