The basic principle is that you cannot enforce a positive covenant. But, there is an exception under the ‘burden and benefit’ rule (ie if someone takes a benefit, then they may be bound by the accompanying burden). The classic example is ?Halsall [1957] where a conveyance gave a right to chattel over private roads, and contained a duty to pay a contribution towards maintenance costs. It was held that the buyer could not use the right of way (the ‘benefit’) unless it also accepted the corresponding obligation to pay the maintenance (the ‘burden’).

But, the ‘benefit and burden’ rule has long been disliked by many commentators, and a restrictive approach has recently been adopted by the courts. What happened was that A contracted to sell to B, and B contracted to sell to C; the end result was a transfer of the property direct to C. The A to B contract was unusual in that it required B to carry out some building works, and when those were completed B had to pay additional money to A. The B to C contract also contained an obligation by C to carry out those works. In due course, C did the works, but then refused to pay the extra money to A. Could A claim the money from C (on the basis that C could not have the benefit of the land without the burden of paying the extra money)? The court held that A could not (since there was no direct contractual relationship between A and C). In the court’s view, A’s claim was against B, not C.

At the same time, the court gave an overview of how the ‘benefit and burden’ doctrine works. In its view:

benefit and burden must be transferred by a single transaction; and

the enjoyment of the ‘benefit’ must be relevant to the imposition of the ‘burden’ (in the sense that the benefit must be reciprocal to, or conditional on, the burden).

Whilst the facts of this case were relatively unusual, it is a good reminder that when dealing with a sub-sale it is important to check whether any contractual obligations of the original buyer should also be made into personal covenants of the assignee/sub-buyer (who covenants directly with the seller). See ?Davies & Ors v Jones & anr [2009] EWCA Civ 1164 (access free at www.practicalconveyancing.co.uk), discussed in [2009] NLJ 54; [2010] 243 PLJ 14.