Facts
- A third party sold part of an industrial estate to Elwood, who covenanted to maintain a road providing access to his purchased land. The third party covenanted, on behalf of himself and his successors, to contribute to Elwood’s maintenance costs
- The third party also sold a unit on his retained land to Goodman, with a covenant that provided Goodman would contribute to the third party’s maintenance costs for the road (to in turn be paid to Elwood)
- Elwood subsequently extended the road by 1 metre, and demanded contribution from Goodman (and others in similar positions to him)
Issues
- Could the doctrine of benefit and burden apply where only part of the original benefiting was acquired?
- Did burdens under the doctrine need registering?
- Was Goodman liable to costs associated with extending the road?
Decision
- Yes, no and no respectively
Reasoning
- Subdivision does not affect the doctrine of benefit and burden’s effect, even without mechanism to distribute accordingly
- The burden of a positive covenant does not create an interest in land, unlike a restrictive covenant, therefore does not need registering
- As Goodman had no right to benefit from the 1 metre road (he was not allowed to use it), he was also not obliged to contribute to its maintenance (its burden)
