Rhone v Stephens [1994] 2 All ER 65

Key point
  • The burden of positive covenants does not run with the land


  • G owned a neighbouring house and a cottage initially
  • The house and cottage were passed through a series of owners until they were in the hands of B and R respectively


  • R claimed that B was under an obligation to repair a roof that covered part of the cottage and was leaking
  • R supported its claim with the original conveyance: clause 3 stated that G and his successors in title of the house will maintain the roof to ensure that it is wind and water tight
  • R also argued that since G took the benefit of support from his cottage, he should have the burden of the covenant to maintain the roof

Rhone Diagram

Held (House of Lords)
  • R’s claim failed; as the covenant to repair was positive, its burden did not pass to B
  • Neither did the principle of benefit and burden allow R to enforce the covenant
Lord Templeman

Passing of the burden

  • While the burden of restrictive covenants pass, the burden of positive covenants do not
  • Theoretical justification
    • Equity does not contradict the common law by allowing burden to pass as the successor in title of the covenantor is prevented from exercising a right which he never acquired
    • The burden of a restrictive covenant is an absence of right that is passed down, in contrast, enforcement of a positive covenant lies in contract since a positive covenant compels an owner to exercise his rights
    • Enforcement of a positive covenant would violate the common law rule that a third party cannot be made liable for a contract
  • Policy justifications
    • ‘Judicial legislation’ would create difficulties and uncertainties
    • In leaseholds, the enforceability of positive covenants has led to tenants losing their homes and being faced with costs of restoring buildings

Effect of s79 LPA 1925

  • S79 is just a word saving provision, it makes it unnecessary to refer to successors in title
  • While S78 LPA 1925 has the effect of making the benefit of positive covenants run with the land, s79 does not make the burden of positive covenants run with the land

Principle of benefit and burden

  • I am not prepared to recognise the ‘pure principle’ that any party deriving any benefit from a conveyance must accept any burden in the same conveyance
  • Under the principle of benefit and burden the condition has to be relevant to the right, not all conditions can be rendered enforceable by attaching it to a right
  • The successor in title claiming the benefit must be able to at least in theory choose to between obtaining the right and paying the cost or not obtaining the right and saving the cost

Current case

  • The covenant to repair was a positive covenant, thus the burden did not pass automatically to B along with the title to the house
  • Neither did the principle of benefit and burden apply
    • The obligation to maintain the roof is an independent provision which did not impose any reciprocal rights or benefits
    • The owners of the house could not be deprived of the right of support
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