Freehold covenants — SQE1 Land question
A worked single-best-answer question on freehold covenants, with why each wrong option is wrong — the way SQE1 traps candidates.
In 2005 Ursula sold part of her land to Victor. The transfer granted Victor a right of way over Ursula's private access road and contained a covenant by Victor, for himself and his successors, to contribute half the cost of maintaining that road. Victor has sold his land to Wanda, who uses the road daily to reach her house. Wanda refuses to pay towards the road's resurfacing, pointing out that she never personally agreed to do so.
Can Ursula require Wanda to contribute to the cost?
- AYes, because the burden of a positive covenant runs automatically with the land under section 79 of the Law of Property Act 1925.
- BNo, because the burden of a positive covenant never binds a successor in title in any circumstances.
- CNo, because Ursula can only sue Victor on his indemnity covenant.
- DYes, because the covenant is restrictive in substance and so binds Wanda in equity.
- EYes, because Wanda cannot take the benefit of the right of way without accepting the related burden of contributing to its maintenance.
Show answer and reasoning
Rule: A successor who takes the benefit of a right must accept a reciprocal burden relevant to that right, even though the burden of a positive covenant does not otherwise run.
- A Section 79 does not make the burden of positive covenants run; Rhone v Stephens confirms it does not run at law or in equity. (wrong rule)
- B Although the burden does not run as such, the benefit and burden principle can make a successor pay as a condition of using the right. (wrong rule)
- C Ursula may sue Victor on the original covenant, but that does not prevent her relying on the benefit and burden principle against Wanda. (answers a different question)
- D A covenant to pay money is positive in substance, so the rule in Tulk v Moxhay does not apply. (right rule, wrong facts)
Source: Halsall v Brizell [1957] Ch 169; Rhone v Stephens [1994] 2 AC 310; Thamesmead Town Ltd v Allotey (1998) 30 HLR 1052