Rhone v Stephens
A covenant to keep a roof in repair is positive, and its burden does not pass to successors in title of freehold land, even though this produces inconvenient results.
Facts
A house was divided into two parts, a house and a cottage, and the cottage was sold. Part of the roof of the house extended over the cottage. In the conveyance of the cottage, the seller covenanted, for himself and his successors, to maintain the part of the roof over the cottage in wind and watertight condition. The house was later sold to Mr Stephens. The roof leaked, damaging the cottage, and the owner of the cottage sued Mr Stephens on the covenant.
Legal principle
The House of Lords held that Mr Stephens was not bound by the covenant. Lord Templeman said that equity does not contradict the common law by enforcing a positive covenant against a successor in title. Tulk v Moxhay applies only to negative covenants, because equity enforces them by preventing the owner from using the land in a way that the original owner could not, and it does not require the successor to do anything. The covenant to repair was positive, and the House would not overrule Austerberry v Oldham Corporation, which was a matter for Parliament.
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
- Halsall v Brizell [1957] Ch 169
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
