Rhone v Stephens [1994] 2 AC 310

Walford House and a cottage formed parts of one building beneath a single roof. When the cottage was separated and conveyed, the then owner of Walford House covenanted to keep the whole roof in good repair. The covenant benefited the cottage but required expenditure and positive action by the owner of the larger house. Walford House later passed to the defendant, who was not the original covenantor. The roof deteriorated and the cottage owner sought to make the successor repair it or pay damages. The claimant argued that the covenant bound the land or that the successor could not enjoy benefits associated with the conveyance without accepting the connected burden of maintaining the roof.

Could the positive repair covenant bind the covenantor's successor in title, either as a covenant running with the freehold or under the benefit-and-burden principle?

The House of Lords held that the successor was not bound. At common law, a successor does not inherit liability under a positive freehold covenant merely by taking the land, and equity does not permit the rule for restrictive covenants in Tulk v Moxhay to be extended to obligations requiring expenditure or action. Lord Templeman rejected an expansive benefit-and-burden argument. Under Halsall v Brizell, a person who chooses to take a closely related benefit may have to accept a corresponding burden where the benefit can be renounced. The roof obligation was an independent promise, not the price of an optional benefit enjoyed by the defendant. It could not be transformed into a proprietary burden merely by linking it to the conveyance.

The burden of a positive covenant does not generally pass to successors in title to freehold land. A successor who elects to take a closely connected benefit may sometimes be required to bear its corresponding burden, but that principle cannot enforce an independent positive obligation or a burden that cannot be avoided by renouncing the benefit.

Rhone preserves the sharp distinction between restrictive covenants, whose equitable burden may run under Tulk v Moxhay, and positive covenants, which normally require other conveyancing devices. Developers may use chains of indemnity, estate rentcharges, leases or a statutory commonhold structure, each with its own requirements. A building scheme may support mutual enforcement of restrictive covenants, but does not by itself make the burden of a positive covenant run. Halsall v Brizell remains a narrow exception and Thamesmead Town v Allotey stresses the need for genuine choice and a direct link between benefit and burden.