‘The law on positive and restrictive covenants should be reformed’. Critically analyse this statement
with particular reference to the Law Commission’s Consultation Paper No 186.
1. Introduction
Freehold covenants = an intangible and sometimes confusing part of land law
o E.Cooke= “so much is so unsatisfactory it is hard to know where to begin”
FH covenant is created by a covenantor who is burdened by the covenant on the land, so the
covenantee gets the benefit
There are two types of covenants, positive and negative, but the complexity stems from the origins
of covenants itself, as a hybrid of equitable interests and contracts between original parties
These different covenants are dealt with separately with different rules, often causing confusion
The law governing positive and negative covenants has been subject to scrutiny for a long time
The Law Commission questioned the need for their existence in 1984, but concluded that they play
an important part in land law
o Sutton describes it as one of the ‘wonders of modern land law’ as it is far too arbitrary and
illogical
This essay will highlight the defects of the current law applicable to both restrictive and positive
covenants
Essay argues that reform suggested by the Law Commission in 2008 to create a new legal interest in
land, known as ‘land obligations’ would go a long way to clarify and modernise the law, but is no
panacea.
2. Defects in the law of positive covenants
Law Commission described as the “biggest defect” = the rule that the burden of a positive covenant
does not run so as to bind successors either at law (subject to exceptions) or in equity!
o Suggest that law on positive covenants should be reformed and should be enforceable
against successors in title as negative covenants are
o O’Connor disagree stating that ‘the refusal… is doctrinally coherent and based on sound
policy”
This stems from the case of Austberry v Oldham Corp and was affirmed in Rhone v Stephens
o O’Connor has a sympathetic approach towards the rule stating that the ‘limiting rules were
intended to control the potentially harmful effects of land use restrictions and obligations,
particular with respect to future owners’
However, the rule has caused dissatisfaction amongst academics, judges and other jurisdictions.
Law Commission reports and the Wilberforce Committee in 1965 confirm the widespread criticism.
o Walsh and Morris note that legislation has been enacted in Northern Ireland, the Northern
Territory of Australia, New Zealand and Ireland, allowing positive covenants to run with the
land
o Gray and Gray suggested that the decision in Austberry “disastrously limited enforceability
of positive burdens”
Although devices are available to bypass this rule, they are “complex and insufficiently
comprehensive” (Law Commission)
As a result, it is impossible to bind successors in title of the burdened land to a simple positive
obligation, such as to keep trees pruned to below a certain height or to maintain a boundary wall
This issue was further examined in Rhone v Stephens in HL
o Lord Templeman re stated principle in Austberry and despite acknowledging that the
current law had been subjected to severe criticism, rejected the opportunity to effect
judicial reform stating that it would cause too many complex issues for home owners
o Suggested that reform would have to be considered by means of legislation and would
require “careful consideration of the consequences”
with particular reference to the Law Commission’s Consultation Paper No 186.
1. Introduction
Freehold covenants = an intangible and sometimes confusing part of land law
o E.Cooke= “so much is so unsatisfactory it is hard to know where to begin”
FH covenant is created by a covenantor who is burdened by the covenant on the land, so the
covenantee gets the benefit
There are two types of covenants, positive and negative, but the complexity stems from the origins
of covenants itself, as a hybrid of equitable interests and contracts between original parties
These different covenants are dealt with separately with different rules, often causing confusion
The law governing positive and negative covenants has been subject to scrutiny for a long time
The Law Commission questioned the need for their existence in 1984, but concluded that they play
an important part in land law
o Sutton describes it as one of the ‘wonders of modern land law’ as it is far too arbitrary and
illogical
This essay will highlight the defects of the current law applicable to both restrictive and positive
covenants
Essay argues that reform suggested by the Law Commission in 2008 to create a new legal interest in
land, known as ‘land obligations’ would go a long way to clarify and modernise the law, but is no
panacea.
2. Defects in the law of positive covenants
Law Commission described as the “biggest defect” = the rule that the burden of a positive covenant
does not run so as to bind successors either at law (subject to exceptions) or in equity!
o Suggest that law on positive covenants should be reformed and should be enforceable
against successors in title as negative covenants are
o O’Connor disagree stating that ‘the refusal… is doctrinally coherent and based on sound
policy”
This stems from the case of Austberry v Oldham Corp and was affirmed in Rhone v Stephens
o O’Connor has a sympathetic approach towards the rule stating that the ‘limiting rules were
intended to control the potentially harmful effects of land use restrictions and obligations,
particular with respect to future owners’
However, the rule has caused dissatisfaction amongst academics, judges and other jurisdictions.
Law Commission reports and the Wilberforce Committee in 1965 confirm the widespread criticism.
o Walsh and Morris note that legislation has been enacted in Northern Ireland, the Northern
Territory of Australia, New Zealand and Ireland, allowing positive covenants to run with the
land
o Gray and Gray suggested that the decision in Austberry “disastrously limited enforceability
of positive burdens”
Although devices are available to bypass this rule, they are “complex and insufficiently
comprehensive” (Law Commission)
As a result, it is impossible to bind successors in title of the burdened land to a simple positive
obligation, such as to keep trees pruned to below a certain height or to maintain a boundary wall
This issue was further examined in Rhone v Stephens in HL
o Lord Templeman re stated principle in Austberry and despite acknowledging that the
current law had been subjected to severe criticism, rejected the opportunity to effect
judicial reform stating that it would cause too many complex issues for home owners
o Suggested that reform would have to be considered by means of legislation and would
require “careful consideration of the consequences”
