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    Workshop 4

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    niamhisibley
    The neighbouring landowner is entitled to ask for the covenants regarding maintenance of the shared parking facility and hedge to be observed, as there is a clear link between the benefit and burden. Our client will have to pay towards maintenance of the shared parking in the future if they want to use it, but can relinquish the benefit to avoid the burden. They cannot remove the hedge and trees on the boundary as the covenant regarding its maintenance cannot be discharged.

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    Workshop 4

    Uploaded by

    niamhisibley
    5 views2 pages
    The neighbouring landowner is entitled to ask for the covenants regarding maintenance of the shared parking facility and hedge to be observed, as there is a clear link between the benefit and burden. Our client will have to pay towards maintenance of the shared parking in the future if they want to use it, but can relinquish the benefit to avoid the burden. They cannot remove the hedge and trees on the boundary as the covenant regarding its maintenance cannot be discharged.

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    The neighbouring landowner is entitled to ask for the covenants regarding maintenance of the shared parking facility and hedge to be observed, as there is a clear link between the benefit and burden. Our client will have to pay towards maintenance of the shared parking in the future if they want to use it, but can relinquish the benefit to avoid the burden. They cannot remove the hedge and trees on the boundary as the covenant regarding its maintenance cannot be discharged.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    5 views2 pages

    Workshop 4

    Uploaded by

    niamhisibley
    The neighbouring landowner is entitled to ask for the covenants regarding maintenance of the shared parking facility and hedge to be observed, as there is a clear link between the benefit and burden. Our client will have to pay towards maintenance of the shared parking in the future if they want to use it, but can relinquish the benefit to avoid the burden. They cannot remove the hedge and trees on the boundary as the covenant regarding its maintenance cannot be discharged.

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    Workshop 4 – Apply Task

    1. Is the neighbouring landowner entitled to ask for these covenants to be


    observed?
     The covenants referred to hereafter are the maintenance and repair of the
    overflowing parking facility and the planting and maintenance of a substantial
    hedge along the boundary.
     As HG Lewisham have to find money to spend to perform both covenants, they
    are positive under the ‘hand in pocket’ test set out in Haywood v Brunswick
    Permanent Benefit Building Society.
     Positive covenants will not be enforced against a successor covenantor – here our
    client APP – in equity.
     The general rule under common law is that the burden of a covenant does not pass
    to a successor (Austerberry v Oldham Corporation), meaning the covenant would
    be unenforceable against APP and the burden would remain with HG Lewisham
    permanently.
     The doctrine of mutual benefit and burden provides a limited exception to the
    general rule, enabling the burden of a covenant to pass to a successor covenantor
    at common law where the covenantee grants the covenantor a benefit in the nature
    of an easement and imposes a connected burden (Halsall v Brizell). The successor
    covenantor (APP) cannot take the benefit of parking, e.g. but avoid paying the
    maintenance and repairs by relying on the general rule.
     Benefit will be passed (right to park) and the burden will also pass (contribution
    towards the maintenance and repair).
     There is a clear link between the burden and the benefit (Rhone v Stephens).
     The client has a genuine choice as to whether or not to take the benefit
    (Thamesmead Town Ltd v Allotey).
     APP has the right to use the land belonging to Johnson Peters Limited land for
    parking and ‘under the terms of the same transfer’ is obliged to contribute towards
    maintenance and repair costs: the benefit and burden have been conferred in the
    same transaction (Davies v Jones).
     The express wording within the Official Copy of register of title constitutes
    express assignment, whereby the purchaser – APP - ‘covenants for itself and its
    successors in title for the benefit of the retained land of the seller’ to maintain and
    repair the parking facility and the substantial hedge. This assignment must be in
    writing and express notice must have been given to the covenantor under s 136,
    LPA 1925.
     The neighbouring landowner will therefore be entitled to ask for both of these
    covenants to be observed.

    2. Will our client have to pay towards the maintenance of the shared parking in the
    future?
     As mentioned above, the doctrine of mutual benefit and burden provides a limited
    exception to the general rule, enabling the burden of a covenant to pass to a
    successor covenantor at common law where the covenantee grants the covenantor
    a benefit in the nature of an easement and imposes a connected burden (Halsall v
    Brizell).
     The successor covenantor (APP) cannot take the benefit of parking, e.g. but avoid
    paying for the maintenance and repairs by relying on the general rule.
     If APP are happy to relinquish the benefit of parking, the burden of payment
    cannot be enforced. Their liability is conditional.
     If, however, APP want to use the parking (the benefit), they will have to pay
    towards its maintenance (the burden) in the future.

    3. Can our client remove the hedge and trees on the boundary?
     S 84(1) specifically states that the Upper Tribunal (Lands Chamber) can only
    discharge or modify restrictive covenants.
     The positive covenant regarding the maintenance of the hedge and trees along the
    boundary, therefore, cannot be modified or discharged and, seemingly, APP will
    not be able to remove the hedge on trees on the boundary as a result.

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