Seeking contributions towards the maintenance of a shared estate road can be tricky, especially if the estate road owner is not in the habit of maintaining and repairing the road and recovering costs from the parties that benefit from a right to use it.
Generally speaking, positive covenants do not ‘run with the land’. This means that an obligation on an individual land owner to take a positive action, for example to carry out maintenance and repair works, or make a contribution towards the cost of such works, does not pass to the land owner’s successors in title. A number of mechanisms have been developed to deal with this anomaly.
Chain of indemnities
If a land owner covenants to, for example, make a contribution towards the costs incurred by an estate road owner in maintaining and repairing the estate road, that first covenant should be accompanied by a second covenant to, by way of indemnity, perform the first. The covenant by way of indemnity should be repeated each time the land in question is sold, thus creating a chain of indemnities on which the owner of the estate road can rely. This is a practical legal approach to the problem of making positive covenants ‘run with the land’, but a chain of indemnities is only ever as strong as its weakest link. So, if the current land owner fails to perform the covenant to contribute towards the costs incurred in maintaining the estate road, the estate road owner will be limited to the recovery of damages from a previous land owner, rather than an injunction or an order for specific performance.
Compulsory renewed covenants supported by a restriction
This is perhaps a mechanism more commonly used in modern transfer deeds. When a positive covenant is given, it is often accompanied by a restriction on the registered title to the land that will prevent a disposition (i.e. transfer, lease, charge) of that land without proof of compliance with the restriction. The restriction will most probably require the person taking the benefit of the disposition to enter into a new deed of covenant with the owner of the estate road, confirming that it will comply with the terms of the original positive covenant. This new deed of covenant will create a direct relationship with the new owner of the land and the owner of the estate road, which, if need be, will enable the owner of the estate road to enforce the original positive covenant against the new owner of the land.
But what if neither of the above mechanisms have been employed? Is there any other way that the owner of the estate road can enforce a positive covenant against the land owner?
Benefit and burden principle
The 1957 case of Halsall v Brizell ( Ch 169) introduced the benefit and burden principle. In essence, the principle dictates that the owner of benefitting land (i.e. the land owner) cannot exercise the benefit of a right without simultaneously accepting any accompanying burden. So, for example, a party with a right of way over an estate road cannot exercise that right without also accepting any simultaneous obligation to contribute towards the maintenance and repair of the estate road.
Such benefits and burdens often originate from historical land transfers and are vaguely worded, so putting the principle into practice can be challenging. For example, a land owner may have the benefit of a right to use an estate road to access his property, subject to the payment of a ‘fair proportion’ of the costs incurred by the estate road owner in maintaining and repairing the estate road. But what is a fair proportion, how is it calculated and how should the burdened estate road owner communicate the need for the benefitting land owner to make a contribution towards the maintenance and repair costs and ultimately recover payment?
Here are some points to consider:
- The burdened estate road owner should obtain quotes for the works and put the benefitting land owner on notice.
- The burdened estate road owner should consider getting payment on account from the benefitting land owner prior to commencing the maintenance and repair works.
- The burdened estate road owner should devise a justifiable and transparent way of calculating a ‘fair proportion’ of the costs incurred in carrying out the repair and maintenance works. This may depend on the frequency with which the benefitting land owner uses the estate road in practice, or the extent of the estate road that it actually uses. A ‘fair proportion’ may ultimately be different for each benefitting land owner that uses the estate road.
- The burdened estate road owner must not charge the benefitting land owner for any ‘superior works’ that go above and beyond the maintenance and repair of the estate road because he will not ultimately be able to recover these costs (Crane Road Properties LLP v Hundalani  EWHC 2066).
Unfortunately, the practical operation of the benefit and burden principle is never going to be clear cut or without difficulties. However, so long as the channels of communication between the owners of the burdened and benefitting land are maintained, the process of enforcing positive covenants should at least become a little easier.
Commercial Property Department
0113 227 9209