Austerberry confirmed

In Rhone v Stephens ([1994] 2 AC 310, HL) a house owner had covenanted with a neighbour who lived in the cottage next door to keep his own roof in repair. The roof fell into disrepair and the owner of the cottage sought to enforce the covenant. Ownership of the house and the cottage had changed hands since the covenant had been entered into. So the question was whether the burden of this positive covenant ran with the land and affected a successor-in-title of the original covenantor. The House of Lords followed the Austerberry decision and held that the burden of a positive covenant does not run with the land.

‘As between persons interested in land other than as landlord and tenant, the benefit of a covenant may run with the land at law but not the burden’. (per Lord Templeman at 317).

The position is the same in equity:

‘[E]quity supplements but does not contradict the common law … Equity does not contradict the common law by enforcing a restrictive covenant against a successor in title of the covenantor but prevents a successor from enforcing a right which he never acquired.’ (at 317)

‘Equity cannot compel an owner to comply with a positive covenant entered into by his successors in title without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it. Enforcement of a positive covenant lies in contract; a positive covenant compels an owner to exercise his rights. Enforcement of a negative covenant lies in property; a negative covenant deprives the owner of a right over property.’ (at 318)

‘[Y]our Lordships were invited to overrule the decision of the Court of Appeal in the Austerberry case. To do so would destroy the distinction between law and equity.’ (at 321)

3 Responses to “Austerberry confirmed”

  1. Tao Says:

    How to understand “the benefit of a covenant may run with the land at law but not the burden”? For the neighbour, it is burden but for the house owner, it shall be benefit. It depends on the departure point.

    • Michael Lower Says:

      Hi tao,
      The house owner made a promise to do something. If you have to carry out the promise then you have the burden of it. A person who can enforce the promise can be said to have the benefit of it.

  2. Jin Says:

    What are the differences between leasehold covenants and land covenants? Thanks.

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