Halsall v Brizell
A person who takes the benefit of rights granted in a deed must also accept the burden of related obligations in the same deed, such as paying for the upkeep of roads.
Facts
Plots of land on a building estate were sold under deeds granting the purchasers rights to use private roads and drains on the estate, and in which each purchaser covenanted to pay a share of the cost of maintaining them. A later owner of one of the plots, who was not the original covenantor, used the roads and drains but refused to pay his share of the cost.
Legal principle
Upjohn J held that the later owner was bound to pay. He said that it is ancient law that a man cannot take benefit under a deed without subscribing to the obligations thereunder. The successor could not use the roads and drains, which were granted by the deed, without accepting the obligation to contribute to their upkeep, although he could escape the obligation by giving up the rights. The principle, known as the doctrine of mutual benefit and burden, is an exception to the rule that the burden of positive covenants does not run.
Related cases on freehold covenants
- Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45, [2020] 1 WLR 4783
- Austerberry v Oldham Corporation (1885) 29 Ch D 750
- Re Ballard's Conveyance [1937] Ch 473
- Bath Rugby Ltd v Greenwood [2021] EWCA Civ 1927
- Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410, [2004] 1 WLR 2409
- Elliston v Reacher [1908] 2 Ch 374
- Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594
- Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
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