• In the case of Wilkinson v Kerdene 2013 EWCA Civ 44 it was found that where an appointment of fees is possible, the burden of the whole fee is enforceable if some part of it correlates with the benefit obtained by D.
  • The owner of a holiday village was entitled to enforce positive covenants against bungalow owners in the village which required them to make payments in respect of the costs of maintaining the roads, car parks and recreational facilities within the village.

Facts of the Case

  • The appellant bungalow owners (Wilkinson) appealed against a decision that they were bound by covenants requiring them to pay maintenance costs to the respondent (Kerdene), owner of the holiday village where the bungalows were situated.
  • The village included a leisure centre and various recreational facilities, roads, and footpaths.
  • Two slightly different conveyances had been used for the sale of the bungalows, depending on when they were purchased.
  • Both contained schedule 1 which granted various rights to the purchaser, lawns, and recreational facilities in the village.
  • Both contained identical clause 4, by which the vendor covenanted to maintain the roads drives, carparking spaces, footpaths, lawns, recreational facilities and paint the external surfaces of the bungalow.
  • Form A contained a covenant that the purchaser would pay an annual sum or a proportionate part for maintain the roads, car parks, pleasure grounds and other recreational facilities in the village, whereas form B contained a covenant for a payment to be made for the purpose of carrying put the various matters referred to in clause 4.
  • The village fell into disrepair. It had been sold to D, who had attempted to restore it to a proper state but had not complied with all the requirements of clause 4.
  • D sought to recover from C the sums payable under the covenants in the conveyances. Most of C were successors in title and the positive covenants were therefore only enforceable if the equitable benefit and burden principle in Halsall v Brizell [1957] Ch.169 [1956] 11 WLUK 118 being applied.
  • The judge found that the charging provision was relevant to and correlated with the right to use the access road and that the difference in wording between form A and B should not produce a different outcome because both conveyances contained maintenance charges.
  • C submitted that the payment covenant was linked to the obligation to repaired under clause 4 rather than to the grant of rights under schedule 1. They argued that the payment of a fixed annual amount was not capable of being apportioned, meaning that the burden of the fixed sum did not correlate with the exercise of the rights granted.

Issues in Wilkinson v Kerdene 2013 EWCA Civ 44I

  • Could D enforce a positive covenant against C in respect to maintenance costs.

Held by Court of Appeal

  • The appeal was dismissed with it being found that a successor in title to the original covenanter did not incur liability to perform a positive covenant unless it has some real relation to a right granted in his favour under the conveyance which he did wish to exercise.

Patten LJ

  • In the form A conveyances, the payment was due for the purpose of maintaining the roads, car parks, pleasure grounds and other recreational facilities under Sch.1. In the form B conveyances, it was a payment towards all the matters referred to in cl.4, which included the Sch.1 facilities together with the upkeep of the lawns and the painting of the bungalows. In form B, it did arguably contribute towards the cost of work carried out by the site owner which was not within the rights granted under Sch.1. However, unless the charge could be apportioned, it remained recoverable if it also related at least in part to the rights which were included in Sch.1. The successors in title therefore had no answer to the claims unless they could show that the payment covenant had no relation to the Sch.1 rights which they had continued to exercise. 
  • “What this recognises was that, in substance, the payment of an annual charge for the maintenance of facilities which the defendants are only entitled to use by virtue of rights granted under the deed is relevant to the continued exercise of those rights even though it is in fact a contribution to the cost of their maintenance. The two are not inconsistent. Quite the contrary”. 28.

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