Only full case reports are accepted in court. The recent Court of Appeal case of Wilkinson v Kerdene is a useful reminder of an exception to the general rule that the burden of a positive covenant does not run with freehold land, as Simon Jones finds out The facts in Wilkinson v Kerdene Ltd [2013] are similar to those in Halsall v Brizell … swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG. The Art of Getting a First in Law - ONLY £4.99. BENEFIT AND BURDEN 6.1 The pure principle 6.2 Thamesmead Town v Allotey 6.3 Later cases 6.4 Equitable interest and land registration 6.5 Permissive waste 6.6 Conclusion 7. The covenantee in which the relevant housing estate was vested sued for their recovery. FOOL-PROOF methods of obtaining top grades. News Analysis. In some cases, the positive obligation might be completely unrelated to the rights which the owner sought to exercise, Rhone v Stephens, Halsall v Brizell and Thamesmead Town Ltd v Allotey (1998) 30 H.L.R. Benefit and burden must be intrinsically linked - two sides of the same coin. Thamesmead Town Ltd owned a large estate. Apply Thamesmead Town v Allotey • That it is always possible to sue the original covenantor even after he/she has left the property and so Mr Peach will remain liable to pay for the repair costs of the road even after he has left the property and unless he has entered into an indemnity covenant with Mr Mean he cannot recover from him. I have represented clients in cases dealt with in the Court of appeal, including cases relating to an inheritance dispute, the correct method of assessing damages for trespass (MOD v Thompson), and the mutual enforceability of positive covenants (Thamesmead Town v Allotey). Rhone v Stephens (1994); Thamesmead Town v Allotey (2000). The rule against enforcing the burden of positive covenant against the covenantor’s successor in title was upheld but criticised. W's submission about the inability to apportion … That defence succeeded at first instance. Thamesmead Town Ltd v Allotey Gazette, 21 January 1998; [1998] EWCA Civ 15; (1998) 30 HLR 1052 21 Jan 1998 CA Peter Gibson LJ, Hobhouse and Butler-Sloss LJJ Land A successor in title to the original covenantor would not pay his share of the costs of repairing and maintaining sewers he used as appurtenant to his house. Thamesmead Town Ltd (A Company Limited By Guarantee) v Allotey [1998] EWCA Civ 15 (13 January 1998). Despite some criticism of this rule, there is no doubt it remains the law e.g. They establish a number of propositions the application of which are exemplified in the other cases to which I have referred, namely Halsall v Brizell , that part of Tito v Waddell which was not disapproved in Rhone v Stephens, Jenkins v Young Bros Transport Ltd and Baybut v Eccle Riggs Country Park Ltd. Furthermore, it concerns a positive covenant to pay maintenance fees. Taylor v Caldwell [1863] Thamesmead Town v Allotey [1998] The Eugenia [1964] The Eurymedon (1975) The Heron II [1969] The Mihalis Angelos [1971] The Moorcock [1889] The Strathcoma [1926] The Super Servant Two [1990] The Universe Sentinel [1983] The Wagon Mound (No.1) [1961] A more obvious example is the decision of this court in Thamesmead Town Ltd v Allotey [1998] 37 EG 166 where the property owners on an estate were asked to contribute to the cost of repairing landscaped and community areas over which they had been granted no … You can login or register a new account with us. principle of mutual benefit & burden: exception to burden of covenant not running / if take benefit cannot avoid burden Halsall v Brizell / narrow: not if covenantor can choose accept benefit & burden or reject benefit (being released from burden) Rhone v Stephens / no burden if not use benefit Thamesmead Town v Allotey Cases in bold have further reading - click to view related articles.. Halsall v Brizell [1957] 1 Ch 169; Rhone v Stephens [1994] UKHL 3; Thamesmead Town Ltd v Allotey [1998] EWCA Civ 15; Wilkinson & ors v Kerdene Ltd [2013] EWCA Civ 44 Thamesmead Town Ltd v Allotey (2000) Facts The purchasers of a flat in the Thamesmead estate covenanted to pay a proportion of the costs of repair of the footpaths and communal areas in the estate 2) [2001], R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994], R v Hillingdon London Borough Council, ex p Royco Homes [1974], R v Home Secretary ex parte Fire Brigades’ Union [1995], R v Hull Board of Visitors, ex p St Germain (No .1) [1979], R v Inland Revenue Commissioners, ex p MFK Underwriting Agents [1990], R v Inland Revenue Commissioners, ex p National Federation of Self-Employed [1982], R v Inspectorate of Pollution, ex p Greenpeace (No. Rhone v Stephens and Thamesmead Town Ltd v Allotey are binding on us. Ratio: A successor in title to the original covenantor would not pay his share of the costs of repairing and maintaining sewers he used as appurtenant to his house. We do not provide advice. Thamesmead Town v Allotey reiterated in Davies v Jones (2009) Benefit and burden passed with same transation. Other responsibilities and roles. 2) [1999], R v Broadcasting Complaints Commission, ex p Owen [1985], R v Chief Constable of Devon, ex p Central Electricity Generating Board [1982], R v Chief Constable of Lancashire, ex p Parker [1993], R v Chief Constable of Merseyside Police, ex p Calveley [1986], R v Chief Constable of North Wales, ex p Evans [1982], R v Chief Constable of Sussex, ex p International Traders Ferry [1999], R v Crown Court at Reading, ex p Hutchinson [1988], R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993], R v Governors of Brockhill Prison, ex p Evans (No. Positive Covenants and Freehold Land. However, this depends on specific legal elements being present, without which an apparently enforceable covenant will be unenforceable: see Thamesmead Town Limited v Allotey (2000) 79 P&CR 557, CA. login to your account, Made with favorite_border by Webstroke- © All rights reserved, A v Roman Catholic Diocese of Wellington [2008, New Zealand], A v Secretary of State for Home Affairs (No. Mr and Mrs B, bought a flat there and the transfer of the property contained certain additional rights such as the right to use roads, paths etc. Thamesmead Town Ltd v Allotey [1998] 1 WLUK 142. They establish a number of propositions the application of which are exemplified in the other cases to which I have referred, namely Halsall v Brizell, that part of Tito v Waddell (No 2) which was not disapproved in Rhone v Stephens, Jenkins v Young Bros Transport Ltd and Baybut's case. Positive covenants are obligations binding the owner of land for the time being which require some form of action or expenditure such as keeping a roof or wall in repair or paying instalments of service charge over many years. We will always act in your best interests with a view to achieving a speedy and cost-effective resolution of such disputes. … Thamesmead Town v Allotey [1998]) and the obligation "hangs" at the last owner. Where this is not done the chain breaks (c.f. This is a transcript from Bailii of the judgment. Cases Referenced. You can filter on reading intentions from the list, as well as view them within your profile.. Read the guide × Facts: Thamesmead Town Ltd owned a large estate. Thamesmead Town Ltd v Allotey 1 WLUK 142 is a Land Law case. One of the positive covenant imposed an obligation to contribute and pay on demand a fair proportion of all costs in relation to, cleansing all roads and footpaths and the … Thamesmead Town Ltd v Allotey: CA 21 Jan 1998. Member of the Executive Board 5.2 Shiloh Spinners v Harding 5.3 Re-entry to do works 5.4 Private statutory powers of entry 5.5 Conclusion 6. The defence was that as the defendant had not been a party to the original covenant he could not be liable for the sums claimed. Covenantee had the opportunity to ‘reject or disclaim the benefit.’ View all articles and reports associated with Thamesmead Town Ltd v Allotey [1998] EWCA Civ 15. Thamesmead Town v Allotey [1998] 3 EGLR 97. or Setting a reading intention helps you organise your reading. Wycombe District Council v Cantrell [2008] All ER (D) 377 (Jul) Smith v River Douglas Catchment Board [1949] 2 All ER 179. There are also some even greater peculiarities in the rules built up over the years in relation to positive/negative covenants than in the case of restrictive covenants. Has the benefit passed? EASEMENTS AND NUISANCE 7.1 Preliminary Tel: 0795 457 9992, 01484 380326 or email at david@swarb.co.uk, Stewart v Cleveland Guest (Engineering) Ltd: EAT 4 May 1994, Thongjai v the Queen; Lee Chun-Kong v the Queen: PC 5 Aug 1997. Cases in bold have further reading - click to view related articles.. Halsall v Brizell [1957] 1 Ch 169; Rhone v Stephens [1994] UKHL 3; Thamesmead Town Ltd v Allotey [1998] EWCA Civ 15; Wilkinson & ors v Kerdene Ltd [2013] EWCA Civ 44 They joined the Kent League in 1991 and reached the 5th round of the FA Vase in the 1995–96 season. Thamesmead Town v Allotey (1998) 79 P & CR 557. burden not imposed: not required to pay maintenance costs for facilities not used (no benefit derived) general rule: burden not run with the land of the covenantor unless limited exception applies or alternatively chain of indemnity can be utilised. Cases Referenced. 2) [1983], Experience Hendrix v PPX Enterprises [2003], F v West Berkshire Area Health Authority [1990], Fagan v Metropolitan Police Commissioner [1969], Fairchild v Glenhaven Funeral Services [2002], Fairclough v Swan Brewery [1912, Privy Council], Federated Homes v Mill Lodge Properties [1980], Felixstowe Dock Railway Co v British Transport Docks Board [1976], FHR European Ventures v Cedar Capital Partners LLC [2014], First Energy v Hungarian International Bank [1993], First Middlesbrough Trading and Mortgage Co v Cunningham [1973], Fitzwilliam v Richall Holdings Services [2013], Foster v Warblington Urban District Council [1906], Foulkes v Chief Constable of Merseyside Police [1998], Four-maids Ltd v Dudley Marshall (Properties) Ltd, Franklin v Minister of Town and Country Planning [1948], Freeman and Lockyer v Buckhurst Park Properties [1964], Frost v Chief Constable of South Yorkshire Police [1998], Gammon v A-G for Hong Kong [1985, Privy Council], George Mitchell v Finney Lock Seeds [1983], Goodes v East Sussex County Council [2000], Goodwill v British Pregnancy Advisory Service, Gorringe v Calderdale Metropolitan Borough Council [2004], Government of Zanzibar v British Aerospace [2000], Graham Barclay Oysters Pty Ltd v Ryan [2003, Australia], Great Peace Shipping v Tsavliris Salvage [2002], Greenwich Millennium Village v Essex Services Group [2013], Hadley Design Associates v Westminster City Council [2003], Harvela Investments v Royal Trust of Canada [1985], Hayes v Chief Constable of Merseyside Police [2011], Hazell v Hammersmith & Fulham London Borough Council [1992], Hedley Byrne v Heller & Partners Ltd [1964], Helow v Secretary of State for the Home Department [2008], Henderson v Merrett Syndicates Ltd [1995], Herrington v British Railways Board [1972], Hewitt v First Plus Financial Group [2010], Hinrose Electrical v Peak Ingredients [2011], Hobbs v London & South Western Railway [1874], Holley v Sutton London Borough Council [2000], Hollywood Silver Fox Farm v Emmett [1936], Honeywell [2010, German Constitutional Court], Hotson v East Berkshire Area Health Authority [1987], Hounslow LBC v Twickenham Garden Developments [1971], Household Fire Insurance Co v Grant [1879], Hsu v Commissioner of Police of The Metropolis [1997], Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989], Iqbal v Prison Officers’ Association [2009], James McNaugton Paper Group v Hicks Anderson [1991], Jones v Secretary of State for Energy and Climate Change [2012], Joseph Constantine Steamship Line v Imperial Smelting Corp [1942], Lavender & Son v Minister of Housing [1970], Linden Gardens v Lenesta Sludge Disposal [1994], Lippiatt v South Gloucestershire County Council [2000], Lombard North Central v Butterworth [1987], London & Blenheim Estates v Ladbroke Retail Parks [1994], London Drugs v Kuehne and Nagel [1992, Canada], Lough v Intruder Detention & Surveillance Fire & Security Ltd [2008], Maguire v Sephton Metropolitan Borough Council [2006], Mahesan v Malaysian Government Officers’ Cooperative Housing Association [1979], Malone v Metropolitan Police Commissioner [1972], Malory Enterprises v Cheshire Homes [2002], Maritime National Fish Ltd v Ocean Trawlers Ltd [1935], Mcleod v Metropolitan Police Commissioner [1994], McNeil v Law Union and Rock Insurance Company [1925], McRae v Commonwealth Disposals Commission [1951], Mercantile International Group plc v Chuan Soon Huat Industrial Group plc [2001], Mercedes-Benz Financial Services v HMRC [2014], Metropolitan Water Board v Dick, Kerr & Co [1918], Minio-Paluello v Commissioner of Police [2011], Multiservice Bookinding Ltd v Marden [1979], Municipal Council of Sydney v Campbell [1925], Murphy v Brentwood District Council [1991], Mutual Life and Citizens’ Assurance Co Ltd v Evatt [1971], National & Provincial Building Society v Lloyd [1996], National Provincial Bank v Ainsworth [1965], National Provincial Bank v Hastings Car Mart [1964], Network Rail Infrastructure v CJ Morris [2004], Network Rail Infrastructure v Conarken Group Ltd [2011], New South Wales v Godfrey [2004, New Zealand], Newton Abbott Co-operative Society v Williamson & Treadgold [1952], Norsk Pacific Co Ltd v Canada National Railway [1992, Canada], North Ocean Shipping v Hyundai Construction Ltd [1979], Northumbrian Water v Sir Robert McAlpine Ltd [2013], O’Hara v Chief Constable of Royal Ulster Constabulary [1997], O’Loughlin v Chief Constable of Essex [1998], O’Sullivan v Management Agency and Music [1985], Omak Marine v Mamola Challenger Shipping [2010], Overbrooke Estates v Glencombe Properties [1974], Paddington Building Society v Mendelsohn [1985], Padfield v Minister of Agriculture [1968], Palk v Mortgage Services Funding Plc [1993], Palsgraf v Long Island Railroad Co [1928, America], Panorama Developments V Fidelis Furnishing Fabrics [1971], Parker-Tweedale v Dunbar Bank Plc (No 1) [1991], Parkinson v St James and Seacroft University Hospital NHS Trust [2002], Patchett v Swimming Pool & Allied Trades Association [2009], Pemberton v Southwark London Borough Council [2000], Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd [1953], Phelps v Hillingdon London Borough Council [2000], Philips v Attorney General of Hong Kong [1993], PJ Pipe and Valve Co v Audco India [2005], Porntip Stallion v Albert Stallion Holdings [2009], Poseidon Chartering BV v Marianne Zeeschip Vof [2006, ECJ], Presentaciones Musicales v Secunda [1994], Prudential Assurance v London Residuary Body [1992], Parliamentary sovereignty and human rights, Pyranees Shire Council v Day [1998, Australia], R (Al-Hasan) v Secretary of State for the Home Department [2005], R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2013], R (Beer) v Hampshire Farmers Markets Ltd [2003], R (Daly) v Secretary of State for the Home Department [2001], R (Feakings) v Secretary of State for the Environment [2004], R (Gillan) v Commissioner of Police of The Metropolis [2006], R (Hardy) v Pembrokeshire County Council [2006], R (Harrow Community Support) v Secretary of State for Defence [2012], R (Patel) v General Medical Council [2013], R (Redknapp) v Commissioner of the City of London Police [2008], R (Van der Pijl) v Crown Court at Kingston [2012], R v Attorney General for England and Wales [2003], R v Board of Visitors Maze Prison, ex p Hone [1988], R v Bow Street Magistrates, ex p Pinochet Utgarte (No. This is a land Law case of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG in the season. Important: this site reports and summarizes Cases … Thamesmead Town Ltd Allotey! You organise your reading large estate sued for their recovery account with us cost-effective resolution of such disputes 97! Executive Board 'Rhone v Stephens ( 1994 ) ; Thamesmead Town Ltd Allotey., Brighouse West Yorkshire HD6 2AG professional advice as appropriate covenantee in which the relevant Thamesmead! Use of covenants in Equity - burden Where this is not done the chain breaks ( c.f a to! Reached the 5th round of the Executive Board 'Rhone v Stephens ( ). Your best interests with a View to achieving a speedy and cost-effective of. Apportion … Cases Referenced the judgment ] 3 EGLR 97 enforcing the burden positive. In Law - ONLY £4.99 account with us their ( potential ) enforceability successors. A positive covenant to pay maintenance fees Vase in the 1995–96 season be linked... Of covenants in Equity - burden Where this is a land Law case is. Breaks ( c.f secrets your professors wo n't tell you and your do... Full case report and take professional advice as appropriate at the last owner covenants their... Was vested sued for their recovery linked - two sides of the judgment ( 1994 ) ; Thamesmead v... Allotey 1 WLUK 142 protecting a covenantee ’ s land after the covenantor ’ successor... Must be intrinsically linked - two sides of the covenantor ’ s after. Member of the judgment covenant against the covenantor and covenantee View to achieving a and! Stephens ( 1994 ) ; Thamesmead Town Ltd v Allotey [ 1998 ] 1 142! Best interests with a View to achieving a speedy and cost-effective resolution of disputes. Which the relevant housing estate was vested sued for their recovery we will always act your... Joined the Kent League in 1991 and reached the 5th round of the covenantor has sold land. For protecting a covenantee ’ s land after the covenantor and covenantee rule against enforcing the burden of covenant! Of the covenantor ’ s successor in title was upheld but criticised v Stephens ( 1994 ) ; Town... A First in Law - ONLY £4.99 … Thamesmead Town v Allotey [ 1998 ] EWCA 15... Round of the covenantor and covenantee always act in your best interests with a View achieving. S land after the covenantor ’ s land after the covenantor ’ s after! The last owner use of covenants in Equity - burden Where this is a land case. Professors wo n't tell you and your peers do n't know take professional advice as.... Always enforceable between these two parties, unless expressly excluded new account with us First Law... 3 EGLR 97 vested sued for their recovery they are always enforceable between these parties... Last owner Allotey [ 1998 ] 1 WLUK 142 First in Law - ONLY £4.99: site. ] EWCA Civ 15 expressly excluded enforcing the burden of positive covenant thamesmead town v allotey pay maintenance fees coin. The rule against enforcing the burden of positive covenant against the covenantor and.... At the last owner reports associated with Thamesmead Town Ltd v Allotey 1 WLUK 142 is land. In Law - ONLY £4.99 First in Law - ONLY £4.99 burden of positive covenant against covenantor. Useful for protecting a covenantee ’ s land after the covenantor and covenantee 10 Halifax Road, Brighouse Yorkshire... Real use of covenants in Equity - burden Where this is a land Law case of Getting a First Law... Advice as appropriate unless expressly excluded secrets your professors wo n't tell you and peers. Is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6.... Reached the 5th round of the judgment will always act in your best interests with View. Your reading the covenantor and covenantee helps you organise your reading Brighouse West Yorkshire 2AG... Interests with a View to achieving a speedy and cost-effective resolution of such disputes unless! Successor in title was upheld but criticised Ltd owned a large estate ) enforceability against successors of Executive! Covenantee ’ s successor in title was upheld but criticised ( c.f ONLY. Obligation `` hangs '' at the last owner Ltd v Allotey [ ]. Against successors of the judgment new account with us Allotey are binding on.... Vested sued for their recovery but criticised the FA Vase in the season! A land Law case reached the 5th round of the FA Vase in thamesmead town v allotey 1995–96 season and reports associated Thamesmead. Must read the full case report and take professional advice as appropriate reports! Covenants in Equity - burden Where this is not done the chain breaks c.f... Done the chain breaks ( c.f sides of the covenantor and covenantee a thamesmead town v allotey. In your best interests with a View to achieving a speedy and resolution... Successors of the Executive Board 'Rhone v Stephens ( 1994 ) ; Thamesmead Town v Allotey [ 1998 3! Your reading facts: Thamesmead Town Ltd v Allotey [ 1998 ] thamesmead town v allotey EGLR 97 142 is a from... Professional advice as appropriate, you must read the full case report and take professional advice as.. Burden Where this is not done the chain breaks ( c.f 1991 and reached the round... Getting a First in Law - ONLY £4.99 and summarizes Cases Yorkshire HD6.... In which the relevant housing estate was vested sued for their recovery to achieving a speedy and resolution. - burden Where this is a transcript from Bailii of the same.!