618, 633, Willmer L.J. Request Changes to record. 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). Research output not available from this repository, contact author. pp. freehold land but has no power to enforce positive covenants against successors. 63 Because the Common Law did not enforce the burden of a covenant against a new repeated that: "A covenant to 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 … 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… b) Passing the burden in equity. Equity will enforce negative covenants against. 477-483. Discuss the differential treatment of positive and negative freehold covenants in law and whether it is justifiable or is in need of reform. The Conveyancer and Property Lawyer . 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. v Stephens [1994] 2 AC 310 said, the condition was relevant to the exercise of the right. 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’. (3) However, again at common law the burden of a positive covenant does not run e.g. Covenant must accommodate a dominant tenement. In Jones v Price [1965] 2 Q.B. Austerberry v. The Corporation of Oldham (1885) 29 Ch D 750. 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. The covenant must pass all four otherwise it will fail. in . The claimants in that case attempted to ar… To enforce negative covenants is only to treat the land as subject to a restriction’ (LORD TEMPLEMAN, Rhone v. Stephens (1994)). ... Lord Templeman: Equity ought not contradict the common law and since positive obligations cannot be imposed under common law …  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 Templeman. Tophams v Earl of Sefton - Covenants. LORD TEMPLEMAN. Nor will House of Lords overrule common law rule. The reference in his speech to the exercise of those rights being conditional upon … Lord Templeman –. ), 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. May 28, 2019. 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 … Rhone. Rhone v Stephens [1994] Uncategorized Legal Case Notes August 26, 2018. As Lord . The strict legal position was accordingly observed and privity of contract was maintained. BUT only if it meets the Tulk v Moxay criteria. 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. v. STEPHENS (EXECUTRIX OF MRS. M. BARNARD, DECEASED) (RESPONDENT) Lord Templeman Lord Oliver of Aylmerton Lord Woolf Lord Lloyd Lord Nolan. Rhone v Stephens, per Lord Templeman: “the condition must be relevant to the exercise of the right” 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. Snape, John (1994) Case note : Rhone v Stephens : the burden of positive covenants. Sydney William Templeman, Baron Templeman, MBE, PC (3 March 1920 – 4 June 2014) was a British judge. Lord Templeman; calls for statutory reform in the area, but essentially confirms Austerberry. 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. Rhone v Stephens - Covenants. He served as a Lord of Appeal in Ordinary from 1982 to 1995. Rhone v Stephens [1995] CLJ 60 Case summary last updated at 08/01/2020 18:41 by the Oxbridge Notes in-house law team. Rhone v Stephens [1994] –Here the House of Lords confirmed the doctrine. Sydney Templeman, Baron Templeman - WikiMili, The Free Encyclopedia - WikiMili, The Free Encyclopedia 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. In Rhone v. Stephens a house was divided, the house being retained together with the roof over the cottage. 1) The covenant must be restrictive in nature 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. in title of land. 16 Rhone v Stephens [1994] 2 A.C. 310 at 321 per Lord Templeman. Rhone v Stephens [1994] UKHL 3 is an English land law case, concerning covenants. 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