- Land was divided into a house and a cottage; with one bedroom of the house supported by the cottage
- The house owner covenanted to keep in good repair the part of the cottage supporting the house (positive covenant)
- The cottage fell into disrepair after the claimant had purchased it, with assignment of the benefit of the covenant
- Could the executrix of the house owner (first successor of the covenantor) be sued by the claimant (successor of the cottage owner and covenantee)?
- The burden of a covenant, just as was said in Austerberry v Oldham Corporation (1885), will not pass as common law due to privity issues
- Equity does not contradict this rule where positive covenants are concerned, and nor does s 79 of the Law of Property Act 1925 (which provides that a covenantor makes a covenant on behalf of his successors without contrary intention)
- If Parliament wished to change this rule prospectively (i.e. for covenants not yet created only), it could
- The doctrine of benefit and burden was inapplicable as the obligation to repair was independent of any possible obligation to support the house