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23rd September 2013

Benefit and Burden in Relation to the Maintenance of an Estate Road

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In the recent case of Goodman and Others v Elwood the question considered by the Court of Appeal was whether a successor in title to part of a site was bound by a positive covenant imposed on one of its predecessors to contribute to the maintenance of an estate road.

In the recent case of Goodman and Others v Elwood the question considered by the Court of Appeal was whether a successor in title to part of a site was bound by a positive covenant imposed on one of its predecessors to contribute to the maintenance of an estate road. The Court invoked the benefit and burden principle established in Halsall v Brizell [1957] to the effect that, where a successor in title takes the benefit of relevant rights, it will be bound to contribute proportionately towards such costs. The Court took the view that this principle could apply to a successor in title to contribute to such costs appropriately having regard to the land actually acquired. However, in this instance the Court of Appeal determined that the successor was not bound to contribute to such maintenance costs in relation to land over which it did not have a right of way but only a terminable licence to use a right of way. The principle established was that the burden of the covenant only passes in circumstances where there is a correlation between the rights granted and the obligations imposed in relation to costs of maintenance and repair. This was not present in this particular case because, whilst the burden imposed involved making a financial contribution to the improvement of a length of road, there was no corresponding right to use it but only a licence. For more information, please contact Marc Carter on 01604 233233 or click here to email Marc.