b) Passing the burden in equity. ), 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. in . In Rhone and another v Stephens (Executrix of May Ellen Barnard, decd. Rhone v Stephens [1994] Uncategorized Legal Case Notes August 26, 2018. Sydney William Templeman, Baron Templeman, MBE, PC (3 March 1920 – 4 June 2014) was a British judge. The covenant must pass all four otherwise it will fail. The claimants in that case attempted to ar… ... Lord Templeman: Equity ought not contradict the common law and since positive obligations cannot be imposed under common law … Equity will enforce negative covenants against. Covenant must accommodate a dominant tenement. Snape, John (1994) Case note : Rhone v Stephens : the burden of positive covenants. 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). Austerberry v. The Corporation of Oldham (1885) 29 Ch D 750. LORD TEMPLEMAN. repeated that: "A covenant to 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. 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. In Rhone v. Stephens a house was divided, the house being retained together with the roof over the cottage. To enforce negative covenants is only to treat the land as subject to a restriction’ (LORD TEMPLEMAN, Rhone v. Stephens (1994)). in title of land. 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. 63 Because the Common Law did not enforce the burden of a covenant against a new Lord Templeman –. see the Austerberry case" per Lord Templeman in Rhone v Stephens (1994) 2 AC 310 at 317. Most notably, in the House of Lords case of Rhone v Stephens, 17 Lord Templeman said ‘I am not prepared to recognize the “pure principle” that any party deriving any benefit from a conveyance must accept any burden in the same conveyance’. 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. Sydney Templeman, Baron Templeman - WikiMili, The Free Encyclopedia - WikiMili, The Free Encyclopedia Original covenantor remains liable for breaches of covenant in respect of damages only; also see S79 LPA 1925. Request Changes to record. 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. Rhone v Stephens [1995] CLJ 60 Case summary last updated at 08/01/2020 18:41 by the Oxbridge Notes in-house law team. 1) The covenant must be restrictive in nature May 28, 2019. They could only be enforced in Equity see Rhone v. Stephens [1994] 2 A.C.. 310. The reference in his speech to the exercise of those rights being conditional upon … 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 … The Conveyancer and Property Lawyer . Lord Templeman; calls for statutory reform in the area, but essentially confirms Austerberry. 17 See discussion in Law Commission, Making Land Work: Easements, Covenants and Profits à … (3) However, again at common law the burden of a positive covenant does not run e.g. 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. Rhone. These are viewed as four hurdles. Discuss the differential treatment of positive and negative freehold covenants in law and whether it is justifiable or is in need of reform. He served as a Lord of Appeal in Ordinary from 1982 to 1995. 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”.  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 [1994] –Here the House of Lords confirmed the doctrine. Rhone v Stephens [1994] UKHL 3 is an English land law case, concerning covenants. 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 … Templeman. As Lord . BUT only if it meets the Tulk v Moxay criteria. Rhone v Stephens, per Lord Templeman: “the condition must be relevant to the exercise of the right” freehold land but has no power to enforce positive covenants against successors. 618, 633, Willmer L.J. Rhone v Stephens - Covenants. obligation to reinstate.6 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 be enforced by depriving the covenantor’s The strict legal position was accordingly observed and privity of contract was maintained. Rhone v Stephens. Research output not available from this repository, contact author. In Jones v Price [1965] 2 Q.B. v Stephens [1994] 2 AC 310 said, the condition was relevant to the exercise of the right. 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. 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… 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. 16 Rhone v Stephens [1994] 2 A.C. 310 at 321 per Lord Templeman. 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