So, in Rhone, the assignee of the covenantor, although entitled to the ‘benefit’ of the support for her roof, could not realistically elect to renounce this to avoid the burden of having to pay for its repair. ... Lord Templeman: Equity ought not contradict the common law and since positive obligations cannot be imposed under common law … 1) The covenant must be restrictive in nature Original covenantor remains liable for breaches of covenant in respect of damages only; also see S79 LPA 1925. Rhone v Stephens. Rhone v Stephens [1994] Uncategorized Legal Case Notes August 26, 2018. Rhone v Stephens [1994] –Here the House of Lords confirmed the doctrine.  Lord Templeman Rhone v Stephens  “Without casting any doubt on those long standing decisions I do not consider that it follows that s79 of the Act of 1925 has the corresponding effect of making the burden of positive covenants run Rhone v Stephens, per Lord Templeman: “the condition must be relevant to the exercise of the right” May 28, 2019. (3) However, again at common law the burden of a positive covenant does not run e.g. The basis for the principle was outlined in Rhone v Stephens [1994] 2 AC 310 where Lord Templeman determined that enforcing a positive covenant against a successor (such as a buyer of land) would contradict the rule that contracts are only enforceable against the … In the landmark case on positive covenants, Rhone v Stephens [1997] UKHL 3, Lord Templeman stated that the maxim that ‘equity supplements but cannot contradict the common law’ must be observed and thus it was not possible to allow an agreement that was expressly between the current landowners to pass to a third party purchaser who was not involved in the covenant. However, a unanimous House of Lords speaking through Lord Templeman in Rhone v. Stephens, rejected this view: 7 It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may … In Rhone v Stephens [1994] 2 A.C. 310 (House of Lords), Lord Templeman stated at 322B:- "… I do not consider that it follows that Section 79 of the Act of 1925 had the corresponding effect of making the burden of positive covenants run with the land. This decision has been highly controversial and criticised but it was confirmed in Rhone v Stephens (1994) [ 16], however Lord Templeman has said it to be “…inappropriate for the courts to overrule the Austerbury case, which has provided the basis for transactions relating to the rights and liabilities of landowners for over 100 years… In Rhone and another v Stephens (Executrix of May Ellen Barnard, decd. 17 See discussion in Law Commission, Making Land Work: Easements, Covenants and Profits à … see the Austerberry case" per Lord Templeman in Rhone v Stephens (1994) 2 AC 310 at 317. The claimants in that case attempted to ar… 618, 633, Willmer L.J. The reference, in Lord Templeman's speech in Rhone v Stephens 2 A.C. 310, to the exercise of those rights being conditional upon the performance of the positive obligation was not limited to cases in which it was expressly so conditional. The strict legal position was accordingly observed and privity of contract was maintained. Rhone. In Rhone v Stephens, 31 the House of Lords revisited this “pure principle” with Lord Templeman casting significant doubt on Megarry's interpretation, noting that he was “not prepared to recognise the ‘pure principle’ that any party deriving any benefit from a conveyance must accept any burden in the same conveyance”. 16 Rhone v Stephens [1994] 2 A.C. 310 at 321 per Lord Templeman. Lord Templeman: 'For over 100 years, it has been clear and accepted law that equity will enforce negative covenants against freehold land but has no power to enforce positive covenants against successors in title of the land. They could only be enforced in Equity see Rhone v. Stephens [1994] 2 A.C.. 310. v Stephens [1994] 2 AC 310 said, the condition was relevant to the exercise of the right. pp. Discuss the differential treatment of positive and negative freehold covenants in law and whether it is justifiable or is in need of reform. Equity will enforce negative covenants against. The reference in his speech to the exercise of those rights being conditional upon … Snape, John (1994) Case note : Rhone v Stephens : the burden of positive covenants. Rhone v Stephens [1994] UKHL 3 is an English land law case, concerning covenants. The covenant must pass all four otherwise it will fail. Rhone v Stephens [1995] CLJ 60 Case summary last updated at 08/01/2020 18:41 by the Oxbridge Notes in-house law team. LORD TEMPLEMAN. Austerberry v. The Corporation of Oldham (1885) 29 Ch D 750. The Burden of a covenant CAN pass in equity. Research output not available from this repository, contact author. Nor will House of Lords overrule common law rule. Sydney William Templeman, Baron Templeman, MBE, PC (3 March 1920 – 4 June 2014) was a British judge. repeated that: "A covenant to in . My Lords, This appeal raises the question of the enforceability of positive covenants between owners of freehold estates and involves consideration of the rule in Austerberry v. As Lord . 63 Because the Common Law did not enforce the burden of a covenant against a new 477-483. in title of land. These are viewed as four hurdles. Templeman. v. STEPHENS (EXECUTRIX OF MRS. M. BARNARD, DECEASED) (RESPONDENT) Lord Templeman Lord Oliver of Aylmerton Lord Woolf Lord Lloyd Lord Nolan. freehold land but has no power to enforce positive covenants against successors. In Rhone v. Stephens a house was divided, the house being retained together with the roof over the cottage. BUT only if it meets the Tulk v Moxay criteria. The rule has been criticised, but was confirmed in Rhone v Stephens (1994): Nourse LJ – ‘the rule is hard to justify’ (Court of Appeal), but Lord Templeman held it to be ‘inappropriate for the courts to overrule the Austerberry case, which has provided the basis for transactions relating to the rights and liabilities of landowners for over 100 years …’ (House of Lords). Considerable weight was given to Lord Templeman’s earlier judgment, where he emphasised that a successor in title will only incur a liability to perform a positive covenant if it has some real relation to a right granted in his favour and that right is exercised. Rhone v Stephens [1994] UKHL 3 is an English land law case, at the court of final appeal level, concerning the succession to the burden of positive covenants in freehold land within which it is of relatively broad application. In Jones v Price [1965] 2 Q.B. Request Changes to record. He served as a Lord of Appeal in Ordinary from 1982 to 1995. Lord Templeman; calls for statutory reform in the area, but essentially confirms Austerberry. Tophams v Earl of Sefton - Covenants. What Lord Templeman emphasised in Rhone v Stephens was that a successor in title to the original covenantor did not incur a liability to perform a positive covenant such as the covenant to repair in that case unless it had some real relation to a right granted in his favour under the conveyance which he did wish to exercise. To enforce negative covenants is only to treat the land as subject to a restriction’ (LORD TEMPLEMAN, Rhone v. Stephens (1994)). Lord Templeman –. Sydney Templeman, Baron Templeman - WikiMili, The Free Encyclopedia - WikiMili, The Free Encyclopedia The Conveyancer and Property Lawyer . ), Lord Templeman opined that: “Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors in title without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it. b) Passing the burden in equity. 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