''Halsall v Brizell''
957Ch 169 is an
English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
case, concerning the enforceability of a positive covenant, that is required positive obligations, in this case the obligation to pay money for upkeep and repair.
Facts
Homebuyers on a Liverpool estate owned their property enjoying the right (having an
easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
) to use estate roads, drains, the promenade, and sea walls subject to the obligation to contribute to repair and upkeep. Brizell, a successor of an original purchaser (buyer from the developer), wished to continue to benefit from all of these but claimed he should not need to pay, as payment was a positive covenant.
Law
It was already old law that positive covenants routinely bind successors in
leasehold
A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a l ...
land. Until this case, conflicting decisions pointed to a narrow category of application of positive covenants (chiefly limited to for example the obligation to erect and maintain railings or fences) could bind successors (beyond the first covenantor, that is purchaser or donee) owning freehold land. This decision clarified that positive covenants, such as the responsibility to maintain or repair infrastructure, attached to a right to enjoy and use that infrastructure, can routinely attach to freeholders who choose to use that infrastructure.
Judgment
Mr Justice
Upjohn
The Upjohn Company was a pharmaceutical manufacturing firm founded in 1886 in Hastings, Michigan, by Dr. William E. Upjohn who was an 1875 graduate of the University of Michigan medical school. The company was originally formed to make ''friabl ...
held (decided) that Brizell could not claim the benefit of the facilities without having to pay for them. He could not exercise the rights without paying his costs of ensuring that they could be exercised.
Significance
The case was approved by ''
Rhone v Stephens
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. It is distinguished in cases of regular paymen ...
'', but also distinguished.
Lord Templeman
Sydney William Templeman, Baron Templeman, MBE, PC (3 March 1920 – 4 June 2014) was a British judge. He served as a Lord of Appeal in Ordinary from 1982 to 1995.
Early life and career
Templeman was born on 3 March 1920, the son of Herbert ...
said the following.
994
Year 994 ( CMXCIV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* September 15 – Battle of the Orontes: Fatimid forces, under Turkish gener ...
UKHL 3, 994
Year 994 ( CMXCIV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* September 15 – Battle of the Orontes: Fatimid forces, under Turkish gener ...
2 AC 310
Applied in
*''
Tito v Waddell (No 2)
''Tito v Waddell (No 2)'' 977Ch 106 is an English trusts law case, concerning what counts as a trust, and creates fiduciary duties, and when specific performance will be ordered. It is important as an historical case that forced the eviction of ...
''
977
Year 977 ( CMLXXVII) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place Europe
* May – Boris II, dethroned emperor (''tsar'') of Bulgaria, and his brother Roman ma ...
Ch 106 (EWHC before the Vice-Chancellor, the Head of the Chancery Division)
*''ER Ives Investment Ltd v High''
9672 QB 379 (EWCA)
Not applied in
*''Signature of St Albans (Property) Guernsey Ltd v Wragg''
017EWHC 2352 (Ch) (distinguishing case law followed)
[
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See also
*English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
**Easements in English law
Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunication ...
**Rentcharge
In English property law, a rentcharge is an annual sum paid by the owner of freehold land (terre-tenant) to the owner of the rentcharge (rentcharger), a person who need have no other legal interest in the land. They are often known as chief rents ...
s
References
{{reflist, 2
1957 in British law
1957 in case law
Covenant (law)
English land case law
High Court of Justice cases