Thamesmead Town Ltd v Allotey

Under the benefit and burden principle, the burden must be relevant to the exercise of the right, and the successor must have the opportunity to choose whether to take the benefit.

Citation
(1998) 30 HLR 1052
Court
Court of Appeal (Civil Division)
Year
1998
Subject
Land Law
Topic
Freehold covenants

Facts

Mr Allotey bought a house on a housing estate. The original purchaser had covenanted to pay a share of the cost of maintaining roads, sewers and communal areas on the estate, such as landscaped areas. Mr Allotey's house had the benefit of rights to use the roads and sewers. Thamesmead Town, the estate management company, sued him for his share of the maintenance costs, relying on Halsall v Brizell.

Legal principle

The Court of Appeal held that Mr Allotey was liable to pay only for the maintenance of the roads and sewers that he used, and not for the communal areas. Peter Gibson LJ said that the benefit and burden principle has two conditions: the condition of discharging the burden must be relevant to the exercise of the rights which enable the benefit to be obtained, and the successor in title must have the opportunity to elect whether to take the benefit, or at least have the opportunity to renounce it. Mr Allotey had no right to use the communal areas, so he could not be required to pay for them under the principle.

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