Wilkinson & Ors v Kerdene Ltd [2013] EWCA Civ 44 (06 February 2013)

Wilkinson & Ors v Kerdene Ltd [2013] EWCA Civ 44 (06 February 2013)

The payment covenants in both Form A and Form B conveyances are enforceable against successors in title under the benefit and burden principle because they correlate with the rights granted under Schedule 1, particularly the right to use the roads and footpaths. The difference in wording between Form A and Form B does not affect enforceability. The payment is intended to ensure the continued exercise of the rights, and the appellants continue to use those rights. The appeals fail as the payment covenant is not severed from the rights granted.

Citation
[2013] EWCA Civ 44
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 / Court of Appeal Judgment
Outcome
appeals dismissed
Legal Topics
Enforcement of Positive Covenants, Benefit and Burden Principle, Service Charges, Freehold Land, Successors in Title
Property Law Equity Enforcement of Positive Covenants Benefit and Burden Principle Service Charges Freehold Land Successors in Title

Case Brief

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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 / Court of Appeal Judgment

Legal Issues

  1. 1 Are positive covenants to pay maintenance charges enforceable against successors in title under the benefit and burden principle?
  2. 2 Does the payment covenant correlate with the rights granted under the conveyance or only with the maintenance obligations?
  3. 3 Does the difference in wording between Form A and Form B conveyances affect enforceability?

Ratio Decidendi

The payment covenants in both Form A and Form B conveyances are enforceable against successors in title under the benefit and burden principle because they correlate with the rights granted under Schedule 1, particularly the right to use the roads and footpaths. The difference in wording between Form A and Form B does not affect enforceability. The payment is intended to ensure the continued exercise of the rights, and the appellants continue to use those rights. The appeals fail as the payment covenant is not severed from the rights granted.

Court Disposition

appeals dismissed

Orders

  • Judgment for Kerdene Limited for the sums claimed under the payment covenants
  • No relief for appellants