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Rhone v Stephens [1994]

Facts

  • 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

Issue

  • Could the executrix of the house owner (first successor of the covenantor) be sued by the claimant (successor of the cottage owner and covenantee)?

Decision

  • No

Reasoning

  • 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
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