Facts
- The purchasers of a flat in the Thamesmead estate covenanted to pay a proportion of the costs of repair of the footpaths and communal areas in the estate
- The purchasers also covenanted to ensure that any subsequent purchaser would covenant to same effect
- The purchasers re-sold the flat to the defendant, failing to ensure that any equivalent covenant was made
- The original covenantee sought to enforce the covenant against the defendant, who refused to pay the demanded £200
Issue
- Could the defendant be forced to pay?
Decision
- Yes
Reasoning
- Although there was no direct covenant, the Thamesmead estate constituted a scheme of development which facilitated the applicability of the doctrine of benefit and burden
- The doctrine requires only a burden relevant to and enabling the exercise of a right and and the opportunity to choose whether to accept that benefit and burden
- The defendant had already chosen to accept the benefit, making the choice element a non-issue, and could be charged ~£40 for enjoyed the benefit of the communal areas without accepting the burden to contribute to their maintenance
- The full £200 could not be ordered as the order had to be reduced to account for only the benefits accepted by the defendant
