Wilkinson v Kerdene [2013] EWCA Civ 44

Key point
  • Where apportionment of fees is impossible, the burden of the whole fee is enforceable as long as some part of it correlates with the benefit obtained by the defendant c.f. Thamesmead¬†Town v Allotey
  • Under sale agreements, owners of a holiday village were obligated to maintain various aspects of it and purchasers of bungalows were required to pay a fixed annual sum for maintenance costs
  • Ds were successors in titles of the bungalows
  • Under cl 4, Cs covenanted to maintain facilities, some of which Ds did not have the right to enjoy under the transfer
  • Ds argued that they were not obligated since the fee could not be apportioned and the burden thus does not correlate with the right
Held (Court of Appeal)
  • The payment of the full maintenance fee could be enforced as it could not be apportioned
Patten LJ
  • Although the exercise of rights to use facilities is not expressly conditional upon payment, the payment is intended to ensure that the right remain capable of being exercised, that the benefit is conditional upon the burden can be implied
  • Although the fees were arguably set out for purposes that were not within the rights of D to enjoy, the fee is recoverable if at least some part of it related to the right exercised
  • The payment, at least in substantial part, was intended to provide a contribution to the cost of maintaining the roads and other facilities over which the owners of the bungalows were granted rights
  • Therefore, the link between the right (usage) and the burden (fee) is not severed
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