Wilkinson v Kerdene Ltd [2013] EWCA Civ 44

The Wilkinsons and others owned bungalows in a holiday village owned by Kerdene. The original conveyances of the bungalows granted the purchasers various rights to use facilities within the village. The conveyances also contained an obligation on the part of the owner of the village to maintain the facilities and an obligation on the part of the purchasers to contribute toward the costs of maintenance. Kerdene acquired the village from the previous owners and undertook various works of repair and maintenance. It sought to recover the costs of doing so from the bungalow owners. In many cases the owners were successors in title to the original purchasers under the conveyances. They argued that the obligation to contribute was a positive covenant and, as such, did not pass with the land and therefore did not bind them. Kerdene argued that the obligation fell within the benefit and burden principle, whereby the burden of positive covenants would pass to a successor in title where it was inextricably linked to rights which benefit that person.

The court agreed with Kerdene. A successor in title would not be required to perform a positive covenant unless it had some real relation to a right granted in its favour under the conveyance which it wished to exercise. There was however no requirement for the exercise of the right to be expressly stated to be conditional upon compliance with the positive covenant. In this case, the payment of the maintenance charges was in reality relevant to the continued exercise of the rights over the facilities notwithstanding that it was a payment toward maintenance and not a payment for the exercise of the rights per se.