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Positive covenants

This page deals with two cases on the enforcement of positive covenants:
  • The owner of the communal parts of a holiday village was entitled to enforce positive covenants against bungalow owners in the village in respect of the costs of maintaining various shared areas and facilities. Although some of the owners were successors-in-title to the covenants, it was held that the covenant to pay was sufficiently relevant to the rights granted to the purchasers to be enforceable under the “benefit and burden” principle. For our full case summary and commentary Log in here.

  • Section 609 of the Housing Act 1985 allows a local housing authority to enforce a restrictive covenant against a covenantor's successor in title even though the authority does not retain any benefiting land. However, it does not enable it to enforce a positive covenant against any such successor. For our full case summary and commentary Log in here.

Benefit and burden principle

Costs of maintaining various shared areas and facilities

Wilkinson v Kerdene
[2013] EWCA Civ 44

Summary

The owner of the communal parts of a holiday village was entitled to enforce positive covenants against bungalow owners in the village in respect of the costs of maintaining various shared areas and facilities. Although some of the owners were successors-in-title to the covenants, it was held that the covenant to pay was sufficiently relevant to the rights granted to the purchasers to be enforceable under the “benefit and burden” principle.

Facts

The As owned and occupied various bungalows in a holiday village, which included a leisure complex and various recreational facilities, roads and footpaths.

The conveyances for the sales of the bungalows to the As were in standard form but some had a slight difference in wording, according to when they were purchased. All of the conveyances contained a schedule granting rights to the purchaser for the use of recreational facilities, roads, footpaths and lawns. The conveyances also contained an identical clause 4 in which the vendor covenanted to maintain the roads, drives, car parks, car p ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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