Wilkinson v Kerdene Ltd [2013] EWCA Civ 44
Facts
Owners of bungalows in a holiday village enjoyed rights over roads, paths and recreational facilities granted by the original conveyances. Those conveyances also provided for annual maintenance payments, using two slightly different forms of wording. Many bungalow owners were successors who had not personally made the original positive covenants. When the village owner sought the charges, they disputed liability and argued that some maintenance activities were not themselves benefits granted by the conveyances. The court had to consider whether the annual payment was sufficiently connected with rights the owners continued to use and whether the charge could be divided.
Legal Issue
Could the annual maintenance charge be recovered from successors who continued to exercise the granted rights, despite the charge also relating to other maintenance activities?
Held
The Court of Appeal dismissed the bungalow owners’ appeal. Patten LJ treated the annual payment as sufficiently connected with the continued exercise of rights granted by the conveyances. The obligation was not detached from those benefits merely because its purpose was to fund their maintenance. The court also considered the construction and apportionability of the particular charge. Where the charge could not be apportioned, the inclusion of some work outside the granted rights did not by itself defeat recovery of the whole sum. The conclusion rested on the linked benefit-and-burden analysis and the wording of the scheme, not on positive covenants generally running with freehold ownership.
⭐ Legal Principle
A successor who takes granted rights may be required to bear a sufficiently connected maintenance burden. Under the particular indivisible charging arrangement in Wilkinson, the inclusion of some additional maintenance did not prevent recovery where the payment also related to rights the successor continued to exercise.
Significance
The case develops the application of the benefit-and-burden principle after Thamesmead Town v Allotey. The apparent tension is resolved by examining the rights granted, the connection with payment and the structure of the charge, including whether it can be apportioned. It does not permit an estate owner to attach any unrelated expense to a useful right. Nor does it abolish the distinction between enforcing a personal positive covenant and making enjoyment of a benefit conditional on its related burden.
Common exam questions about this case
Why was maintenance payment connected to the rights enjoyed?
The charge helped support facilities which the bungalow owners could use because the conveyances granted them rights. Describing the payment as a contribution to maintenance did not sever that connection. The court looked at the substance of the arrangement and the continued exercise of the relevant rights by the successors.
What role did apportionment play?
The construction of the charge mattered because an indivisible payment could remain recoverable even though some covered work did not correspond to granted rights. That is more specific than a rule that every mixed charge is valid. The court had to identify the actual charging obligation and its relationship with the benefits.
Does Wilkinson mean positive covenants now bind every successor?
No. Liability was analysed through the benefit-and-burden principle, which depends on the rights taken and the corresponding obligation. A successor who never promised personally is not bound by every positive covenant in a predecessor’s conveyance merely because ownership has passed. The link with the benefit must still be established.