Wilkinson & Ors v Kerdene Ltd

Wilkinson & Ors v Kerdene Ltd

The payment covenant is enforceable against successors in title because it is sufficiently correlated with the rights granted under Schedule 1, which the appellants continue to exercise. The inability to apportion the fixed sum does not prevent enforcement as long as the payment relates at least in part to the rights exercised. The appeals are dismissed.

Parties
Appellant/defendant: Alan Wilkinson; Appellant/defendant: David Bone; Appellant/defendant: Mary Burrell Bone; Appellant/defendant: Peter Dyke Hancock; Appellant/defendant: Edward Thomas Russell; Appellant/defendant: Brian Douglas Rabey; Appellant/defendant: Simon Brockbank Morland; Appellant/defendant: Brian Turner; Appellant/defendant: Carole Turner; Appellant/defendant: John Waiton; Appellant/defendant: Virginia Sell; Respondent/claimant: Kerdene Limited
Jurisdiction
England and Wales
Judgment Date
06 February 2013
Procedural Posture
Civil Appeal / Judgment on Appeal From County Court
Outcome
appeal dismissed
Legal Topics
Enforceability of Positive Covenants, Benefit and Burden Principle, Service Charge Liability, Successors in Title, Construction of Conveyances
Land Law Equity Enforceability of Positive Covenants Benefit and Burden Principle Service Charge Liability Successors in Title Construction of Conveyances

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Parties

Alan Wilkinson

Appellant/defendant

David Bone

Appellant/defendant

Mary Burrell Bone

Appellant/defendant

Peter Dyke Hancock

Appellant/defendant

Edward Thomas Russell

Appellant/defendant

Brian Douglas Rabey

Appellant/defendant

Simon Brockbank Morland

Appellant/defendant

Brian Turner

Appellant/defendant

Carole Turner

Appellant/defendant

John Waiton

Appellant/defendant

Virginia Sell

Appellant/defendant

Kerdene Limited

Respondent/claimant

Procedural Posture

Civil Appeal / Judgment on Appeal From County Court

Legal Issues

  1. 1 Whether the burden of a positive covenant to pay a fixed maintenance charge is enforceable against successors in title under the benefit and burden principle
  2. 2 Whether the payment covenant correlates with the exercise of rights granted under the conveyance (Schedule 1) or is only referable to the maintenance obligations under clause 4
  3. 3 Whether the inability to apportion the fixed sum affects enforceability against successors in title

Ratio Decidendi

The payment covenant is enforceable against successors in title because it is sufficiently correlated with the rights granted under Schedule 1, which the appellants continue to exercise. The inability to apportion the fixed sum does not prevent enforcement as long as the payment relates at least in part to the rights exercised. The appeals are dismissed.

Court Disposition

appeal dismissed

Orders

  • Appeals dismissed; judgment for Kerdene Limited for sums claimed under the payment covenants.