Dissapearing Covenant

WGG1848

We purchased our property over 30 years ago, when a farm was split up into 6 lots. We purchased one of the lots.
There is a lane which leads to all six lots, we live at the end of this lane.
In the deeds of all six lots is a covenant which states that we are responsible for a one sixth share of the upkeep of the lane.
Recently one of the lots was sold and I enquired from the new owner if he was aware of the covenant in his deeds.
He said to the best of his knowledge that he knew nothing of the covenant.
My question is, can a covenant just disappear?

yangptangkipperbang

WGG1848 wrote: »

He said to the best of his knowledge that he knew nothing of the covenant.

.........was he a politician ?

Arthurian

http://www.phewconveyancing.co.uk/articles/different-types-of-covenants-and-their-relation-to-conveyancing

According to this article, it looks like you could sue the original owner for his share, if the original owner has failed to pass the burden on. Could get costly, though, I imagine.

System

As it is a positive covenant is it even enforceable?

seabright

Positive covenants don't go with the land onto the new owner, unless specifically re-stated in the transfer, only restrictive (negative) covenants stay with the land.


I would expect this to have been an on-going obligation, it may be that he just isn't aware of it. I (property lawyer) write detailed reports on title for all clients purchasing land, but I'm fairly sure the majority never bother reading them, sadly.

moneyistooshorttomention

I know they can go the other way, as my house is down as being responsible for part of the upkeep costs of the unadopted road I am in and I was told (on buying this house recently) who else was.

In the event, there are houses that aren't listed as partially responsible that are also partially responsible (ie in one case I cant think how they were missed off this originally, but they acknowledge "They use, so they pay"). Otherwise, its the case of not being entitled to use the road but accepting that, as they do (and therefore exert "wear and tear" on the road) then they are morally liable to pay up too.

In the event, it's a bit academic anyway, as I know at least one of us is listed as being due to pay (ie myself), but cant afford to pay our share for the foreseeable future and I suspect I'm not the only one. If you haven't got the money, then you haven't got the money....

I can understand why OP would want this person to acknowledge that they have part responsibility though, even if their next words are "But I cant afford to.....".

Freecall

Seabright is correct in that positive covenants don’t go with the land unless the transfer specifically says that they do.

The covenant still exists and the relevant party remains whoever originally entered into the agreement so in your case that would be the original land owner.

This is not good news though because apart from the practical difficulties of locating the original owner and then bringing a case against them if they do not pay, if the owner was a natural person then at some point they will die and the covenant will die with them. This is why it is better to have a restriction on the title which requires the covenant to be passed to any successors in title. If this does not exist (presumably not in your case) then there is not much that can be done about it now.

The good news however is that in Halsall –v- Brizell [1957] it was determined that the benefit of a covenant cannot be exercised without accepting the burden. If your neighbour is using the access road then they should be bearing the burden of payment.

It is a complex area and I would recommend obtaining professional legal advice.

PasturesNew

Many people who buy things don't read/understand the legal stuff/paperwork - and won't spot covenants in there.