Thamesmead Town Ltd v Allotey (1998) 30 HLR 1052

Key point
  • Where the apportionment of fees is possible, the defendant is not liable for fees going to facilities for which he has no right to use c.f. Wilkinson v Kerdene
  • Amount was claimed by the C estate company for repairs to facilities on an estate among D residents
  • In the transfer of the house from the C estate company to the original purchasers, there was a positive covenant requiring the purchaser to pay for maintenance of communal areas, and to contract with successors in title to enter the same covenant
  • But importantly, the transfer did not give the estate company the obligation to maintain the communal areas nor the right of the Ds to use it
  • The Judge did not grant payment of fees for maintenance of communal areas
Held (Court of Appeal)
  • Appeal dismissed, no grant of fees should be made
Peter Gibson LJ
  • Rhone v Stephens lays down 2 propositions on benefit and burden:
    1. the condition of discharging the burden must be relevant to the exercise of the rights which enable the benefit to be obtained; and
    2. the successors in title must have the opportunity to choose whether to take the benefit or to renounce it even if only in theory
  • Furthermore, the successor in title must as of a right be entitled to the benefit, but D had no right to use the communal areas under the original transfer and C had no obligation to maintain the communal areas
  • The burden is only enforceable if the corresponding right was exercised by the defendant, in this case no such right to use the communal areas even existed, but if it existed the claim would not have succeeded either since it was not exercised
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