The burden of positive covenants – any covenant which requires the owner of the servient land to do more than ‘put his hand into his pocket’ – does not pass with the land.
- Land was granted by A to B, B in return covenanted that he and his successors will keep the houses on the land in repair and pay rent to A and A’s successors.
- The benefit of the covenant was assigned to Haywood (H).
- The land was subject to a mortgage and later seized from A by the the mortgagee, Brunswick Building Society (BBS).
- H sued BBS to enforce the covenant to keep the houses on the land in repair.
Did the burden of the covenant to repair pass from A to BBS?
Held (Court of Appeal)
BBS was not liable; the covenant to repair is positive and not restrictive in nature and thus the burden did not pass to BBS.
‘The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length’.