Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
Facts
A conveyance of freehold land reserved a rentcharge and included promises to erect and maintain buildings of sufficient value. The benefit of the covenant later passed to the claimant. Through subsequent dealings, the property was mortgaged to a building society, which entered possession. The claimant sought to require the society to perform the building and repair covenant as successor to the original owner. The rentcharge itself was not the disputed point. The issue was whether the affirmative obligation to spend money on buildings could be enforced against a successor merely because it held the land.
Legal Issue
Could the affirmative covenant to build and repair be enforced against the building society as a successor in possession, rather than against the person who originally promised?
Held
The Court of Appeal held that the building society was not liable on the repair covenant merely as successor to the freehold. The obligation was positive: compliance required work and expenditure, rather than abstention from a prohibited use. The equitable rule allowing certain restrictive covenants to bind successors did not extend to imposing that personal burden simply through notice. Cotton LJ distinguished the restrictive-covenant principle from making an owner put money into another person’s promised works. The result did not eliminate separate liability under a covenant directly undertaken by the successor or decide every possible rentcharge or statutory enforcement mechanism.
⭐ Legal Principle
The burden of an affirmative freehold covenant to build or repair does not run in equity merely because a successor has notice. The restrictive-covenant doctrine cannot ordinarily be used to impose positive expenditure obligations on a later owner.
Significance
Haywood is a foundation for the distinction between positive and restrictive freehold covenants. The nature of compliance matters more than the grammatical form of the promise. Later cases consider separate mechanisms such as benefit and burden, but those are not a general reversal of the rule. An answer should first identify who personally covenanted, then test any asserted basis for liability of the successor.
Common exam questions about this case
Why was the covenant positive?
Its substance required the owner to erect, maintain or rebuild structures, involving affirmative action and expenditure. That differs from a promise not to carry on a specified use. Rewriting a repair obligation in negative language would not necessarily change its substantive classification.
Did notice make the building society liable?
No. Notice alone did not cause the positive burden to run with the freehold. The equitable rule for restrictive covenants has limits, and the claimant needed a separate basis to impose the repair obligation on the successor rather than the original covenantor.
Does Haywood make every successor immune from repair obligations?
No. A successor may personally undertake a covenant or be subject to another applicable mechanism. Haywood concerns liability merely from succeeding to the land under the restrictive-covenant doctrine. The legal route matters, so personal contract, statute and other recognised principles must be analysed separately.