Over 50 years ago, the court held that a successor in title to the original owner could not enjoy the use of a road (the benefit) without making a contribution to its maintenance (the burden) (Halsall v Brizell [1957] Ch 169). Such a positive obligation (as opposed to a promise not to do something) is not enforceable against successors in title to the original 'promisor'. This ‘benefit and burden’ rule developed to alleviate the principle that a person cannot be bound to perform a positive obligation promised by their predecessors in title by making enjoyment of a benefit conferred by a covenant conditional on compliance with any corresponding positive obligation.

In Goodman and others v Elwood [2013] EWCA Civ 110 the Court of Appeal revisited and developed this principle in the context of a successor in title of part of burdened land.

Goodman (G) disputed liability to perform a positive obligation to contribute to the cost of maintaining an access road at an industrial estate owned by E, over which he had a right of way.

In Goodman, there was a mismatch between the benefit (which was a general right over the whole access road), and the burden (which was to contribute to the maintenance of part of the road adjacent to G’s unit only). The court held that the burden was directly proportionate to the benefit and G was therefore liable to contribute to these maintenance costs. A successor who only acquires part of the burdened land can therefore be required to assume a proportionate burden.

G also argued that he should not be bound because the obligation to pay had not been noted in the Title Register in relation to the land acquired by G. The court dismissed this argument as a positive covenant does not create a legal interest and therefore need not be registered to bind successors in title.

G did, however, succeed on part of his appeal which related to his obligations to contribute to the maintenance of a one metre strip of the road which had been added after the relevant transfers had taken place. The court confirmed that the burden of a covenant will only pass where there is a correlation between the rights granted and the obligations imposed. As G had not acquired a right of way over - as opposed to a licence to use - the extension, he was not liable to contribute to its maintenance costs.