The landmark decision in Rhone v Stephens [1994] UKHL 3 remains one of the most significant modern authorities in English land law concerning the enforceability of positive covenants against successors in title to freehold land. The case reaffirmed the long-standing common law rule that, while the burden of negative covenants can run with the land in equity, the burden of positive covenants cannot. In doing so, the House of Lords confirmed that any change to this rule would have to come through legislation rather than judicial development. The case also clarified the limits of the so-called “benefit and burden” principle, drawing a clear line between obligations that restrict land use and those that require active performance.
Background and Facts of Rhone v Stephens
The dispute in Rhone v Stephens [1994] UKHL 3 arose from the division of a property known as Walford House, which consisted of a main house and an adjoining small cottage situated beneath the same roof. When the owner of Walford House decided to sell the cottage as freehold property, the conveyance included a positive covenant by the vendor — the owner of the main house — to keep the roof in good repair. This covenant was expressly stated to bind the vendor and his successors in title for the benefit of the cottage and its future owners.
After some time, the roof fell into disrepair. The new owner of the cottage, now separated from the main house, experienced damage caused by water leakage through the roof. The cottage owner sued the successor in title to the main house, seeking either specific performance (an order compelling the defendant to repair the roof) or damages for breach of the covenant to maintain it.
The plaintiff argued that because the covenant had been worded to bind successors in title, the obligation passed to the defendant as the new owner of the main house. At first instance, the trial judge accepted this argument and held the defendant liable under the covenant. However, the decision was reversed on appeal. The plaintiff then appealed to the House of Lords, contending that the long-standing rule in Austerberry v Corporation of Oldham (1885) — which held that the burden of a positive covenant does not run with freehold land — had been altered or affected by section 79 of the Law of Property Act 1925.
Issue
The central issue before the House of Lords in Rhone v Stephens was whether the burden of a positive covenant can run with freehold land so as to bind successors in title. Put differently, could a subsequent owner of the main house be legally required to perform a positive obligation — in this case, repairing the roof — that had been undertaken by a previous owner under a covenant in the conveyance?
Rhone v Stephens Judgment
The House of Lords dismissed the appeal, holding that the defendant was not bound by the positive covenant to repair the roof. The court reaffirmed the rule that the burden of a positive covenant does not run with freehold land, whether at common law or in equity. Only the original covenantor who entered into the agreement could be held responsible for performing the covenant’s obligations.
Reasoning in Rhone v Stephens
The distinction between positive and negative covenants
Delivering the leading judgment, Lord Templeman explained that the enforcement of a positive covenant against a successor in title would contradict a fundamental rule of contract law — namely, that a person cannot be bound by a contract unless they were a party to it.
Positive covenants, such as obligations to repair or maintain property, require active performance and expenditure. By contrast, negative covenants — for example, those restricting the use of land — can be enforced in equity because they operate as a form of restriction on the land itself rather than as a personal obligation.
Lord Templeman stated that “equity cannot compel an owner to comply with a positive covenant entered into by his predecessor without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it.” Thus, the enforcement of a positive covenant necessarily depends on contractual privity, and once that link is broken by a change of ownership, the burden cannot pass to a new owner.
The relevance of earlier authorities
The House of Lords relied heavily on the decision in Austerberry v Corporation of Oldham (1885) 29 Ch D 750, where it was held that the burden of a positive covenant cannot pass to successors in title at law. Rhone v Stephens confirmed that this principle remained valid and unaffected by later statutory provisions.
Lord Templeman rejected the argument that section 79 of the Law of Property Act 1925 had altered this rule. He explained that section 79 merely removed the need for conveyances to expressly refer to “successors in title” when creating covenants; it did not, however, change the substantive law concerning whether the burden of a covenant could run with land.
The “benefit and burden” principle
The appellant attempted to rely on the so-called benefit and burden principle, which had been recognised in Halsall v Brizell [1957] Ch 169. That case held that where a person takes the benefit of rights over land (such as rights of way or drainage), they may be required to accept the corresponding burdens associated with those rights, such as contributing to maintenance costs.
However, Lord Templeman made it clear in Rhone v Stephens that this principle could not be extended to cover independent positive covenants that were not directly linked to the exercise of a corresponding right. He observed that enforcing such a covenant would effectively make a person liable for obligations without their consent. The “benefit and burden” rule therefore remained narrow and confined to cases where the burden is directly connected to the enjoyment of a related benefit.
Academic and legislative commentary
Lord Templeman noted that the rule against positive covenants running with freehold land had long been criticised. He referred to an article by Professor Sir William Wade, who had described the law as “illogical, uncertain, incomplete and inflexible”.
He also mentioned the Wilberforce Committee Report of 1965, which had recommended legislative reform to allow the enforcement of positive obligations between freehold owners. Despite these criticisms and recommendations, no reform had been enacted. The House of Lords, therefore, considered it inappropriate to alter such a deeply rooted rule judicially.
Social and policy considerations
In discussing the broader implications of the rule, Lord Templeman remarked that logic alone could lead to social injustice. He cited the example of leasehold tenure, where positive covenants are enforceable through privity of estate, sometimes causing hardship to tenants who must bear repair costs over long leases. For that reason, he emphasised that any change to the enforcement of positive covenants in freehold land should come from Parliament, not the courts.
Other Legal Arrangements
Importantly, Rhone v Stephens [1994] UKHL 3 does not affect other mechanisms in property law through which positive obligations may be enforced. The judgment expressly stated that:
- Leasehold covenants remain enforceable between landlords and tenants by virtue of privity of estate.
- Rentcharges, created by deed and registered against the freehold, can still be used to secure performance of positive obligations.
These arrangements provide lawful alternatives for ensuring that repair or maintenance obligations can be enforced in contexts other than freehold conveyances between unrelated owners.
Conclusion
Rhone v Stephens [1994] UKHL 3 stands as a reaffirmation of the principle that positive covenants are personal obligations which do not attach to freehold land. The House of Lords, through Lord Templeman’s clear reasoning, underscored the conceptual boundary between contract and property law: while negative covenants can restrict the use of land and thus run with it, positive covenants remain tied to the person who made them.
Although the rule has been subject to extensive criticism for being outdated and impractical, it continues to form part of the bedrock of English property law. Until Parliament introduces reform, Rhone v Stephens ensures that successors to freehold land are not automatically burdened with the positive obligations of their predecessors, preserving the long-standing balance between personal responsibility and proprietary rights.