Positive Covenants in Freehold Land UK — Why They Don't Run and How to Enforce Them

The Rule — Positive Covenants Don't Run With Freehold Land

The rule that positive covenants do not run with freehold land at law has two components: (a) the burden does not run (the positive obligation does not bind successors in title to the covenantor's land), and (b) the benefit may run (the benefit of a positive covenant may pass to successors in title of the covenantee's land, subject to conditions). The leading case is Rhone v Stephens [1994] AC 310 (House of Lords): the House of Lords confirmed that a positive covenant to repair a shared roof could not bind a successor in title to the original covenantor. Lord Templeman confirmed the longstanding rule that equity follows the law in this area — there is no equitable doctrine that makes positive covenants run with freehold land (unlike restrictive covenants, where Tulk v Moxhay [1848] created an equitable rule making the burden run). For restrictive covenants (obligations not to do something — not to build, not to use for commercial purposes), the burden does run at equity to successors who take with notice of the restriction (actual, constructive, or imputed). This is why restrictive covenants are far more commonly used in freehold property dealings. The practical consequence: a freehold owner who purchases a property subject to a positive covenant is not legally bound by that covenant unless one of the workarounds (see below) applies. A seller who imposed a positive covenant on a buyer cannot enforce it against the buyer's successor — only against the original buyer (and only contractually, not in rem). The rule does not apply to leasehold covenants — in leasehold, positive covenants do run with the leasehold term under the Landlord and Tenant (Covenants) Act 1995.

• Fundamental rule: positive covenants (obligations requiring positive action — repair, maintain, pay a contribution) do NOT automatically run with freehold land to bind successors in title
• Rhone v Stephens [1994] HL: House of Lords confirmed the rule — a positive covenant to repair a shared roof could not bind a successor in title to the original covenantor; no equitable exception for positive covenants
• Restrictive covenants: by contrast, restrictive covenants (obligations NOT to do something) DO run with freehold land at equity (Tulk v Moxhay [1848]) to bind successors who take with notice
• Leasehold: the rule does NOT apply to leasehold covenants — positive covenants (repair, maintain, pay rent) DO run with leasehold tenancies under the Landlord and Tenant (Covenants) Act 1995
• Personal contract only: the original covenantor remains personally liable to the original covenantee even after selling the property — but the covenantor's personal liability may be worthless if the property has been sold several times over

The Benefit and Burden Doctrine — Halsall v Brizell and Its Limits

The most important exception to the rule is the benefit and burden doctrine established in Halsall v Brizell [1957] Ch 169: a person who takes the benefit of a right under a deed must also take the burden associated with that right — they cannot choose to take the benefit without accepting the burden. Example: a developer sells freehold plots on a new estate and each plot owner has a right to use the shared private roads and drains (the benefit). Each plot owner also covenants to contribute to maintenance costs (the burden). Under the benefit and burden doctrine, a successor who exercises the right to use the shared roads must also accept the obligation to contribute to maintenance — the benefit and the burden are inseparably linked. This is not an automatic binding of positive covenants — it is a conditional enforcement: if you want to use the private road (benefit), you must pay the maintenance contribution (burden); if you don't want to pay, you cannot use the road. Limits of the benefit and burden doctrine: (a) the benefit and burden must be genuinely linked — they must arise under the same document; the successor must have actually exercised the right (the benefit); (b) the doctrine requires a genuine conditional relationship — the burden cannot be imposed unless the benefit is truly conditional on it; (c) Thamesmead Town Ltd v Allotey [1998] CA: the Court of Appeal held that the benefit and burden doctrine requires the burden to be genuinely conditional on the benefit — a general maintenance contribution obligation cannot be imposed merely by having the benefit of shared facilities; the link must be tight. Practical use: where an estate is designed from the outset so that the rights (benefit) and the obligations (burden) are clearly linked in the same document, the Halsall doctrine provides a partial but valuable mechanism for enforcing positive covenants against successors.

• Benefit and burden doctrine (Halsall v Brizell [1957]): a successor cannot take the benefit of a right without also accepting the burden that is inseparably linked to it in the same document
• Conditional enforcement: the doctrine requires the benefit to be genuinely conditional on the burden — if you use the private road (benefit), you must pay the maintenance contribution (burden); not an automatic binding
• Thamesmead Town Ltd v Allotey [1998] CA: tight link required between benefit and burden in the same document; general maintenance obligations without a specifically linked benefit may not satisfy the Halsall test
• Structural design: developers exploit the Halsall doctrine by tying specific rights (road use; drain connections; boundary wall use) to specific maintenance obligations in the original transfer document
• Limits: the doctrine is fact-specific and litigated frequently; it provides only partial enforcement of positive covenants and cannot substitute for a structural solution (estate rentcharge; leasehold; management company)

Workarounds — Estate Rentcharges, Commonhold, and the Indemnity Chain

Because positive covenants do not automatically run with freehold land, developers and estate managers use several structural mechanisms to achieve practical enforceability: (i) Estate rentcharges (Rentcharges Act 1977 s.2(4)(b)): a rentcharge is a sum charged on freehold land; an estate rentcharge is a nominal annual sum (often £1 per annum) charged on each freehold plot to fund estate management; crucially, the Rentcharges Act 1977 gives the rentcharge owner the right to enter the land to carry out maintenance works and recover the cost if the estate obligations are not performed (s.121 LPA 1925, preserved for estate rentcharges; s.2(4) RA 1977). Estate rentcharges are a common mechanism on residential developments. LRHUDA 2024 Part 4: the Leasehold and Freehold Reform Act 2024 creates new rights for homeowners on freehold estates to challenge unreasonable estate management charges through the First-tier Tribunal (Property Chamber) — directly addressing the problem of unaccountable freehold estate management charges. The 2037 extinguishment of periodic rentcharges (RA 1977 s.3) does NOT affect estate rentcharges under s.2(4) — they continue indefinitely. (ii) Commonhold (Commonhold and Leasehold Reform Act 2002, reformed by LRHUDA 2024): a form of freehold ownership designed specifically to allow positive obligations to run with freehold units — the commonhold association imposes positive obligations on all unit holders through the Commonhold Community Statement (CCS); positive obligations in a CCS bind all unit holders and their successors without the need for any workaround. Commonhold has been rarely used since 2002 but LRHUDA 2024 reforms the regime to make it more attractive for new developments and for leasehold-to-commonhold conversions. (iii) Indemnity chain: the most basic approach — each successive owner of the burdened land covenants with the seller to observe and perform the positive covenant and to indemnify the seller against any breach; this creates a chain of personal indemnities from the original covenantor through each successor; the chain is only as strong as the solvency of the last link; if any link in the chain breaks (owner becomes untraceable or insolvent), the chain is broken. (iv) Leasehold structure: grant a long lease (999 years) rather than a freehold; leasehold covenants (positive and restrictive) run with the term and bind successors under the LT(C)A 1995; the developer retains the freehold (or a management company retains it) and the lease imposes all positive maintenance obligations; very commonly used on residential estates — but the subject of leasehold reform pressure under the Renters' Rights Act 2025 and LRHUDA 2024. (v) Management company with share of freehold: each purchaser acquires a share in the management company as part of the purchase; the management company owns the freehold or common parts; the management company imposes service charges through its articles of association and shareholders' agreement; not directly enforceable as a covenant (the management company must be a party to any enforcement action) but practically effective.

• Estate rentcharges (RA 1977 s.2(4)): nominal annual charges on each freehold plot funding estate maintenance; the rentcharge owner can enter and carry out works and recover costs if obligations are not performed; LRHUDA 2024 Part 4 gives homeowners new rights to challenge unreasonable estate charges at the FTT
• Commonhold (CLRA 2002; reformed by LRHUDA 2024): dedicated freehold ownership structure where positive obligations in the Commonhold Community Statement bind all unit holders and successors — the only form of English freehold where positive covenants automatically run; LRHUDA 2024 removes barriers to commonhold adoption
• Indemnity chain: each successive owner covenants personally with the seller to perform the obligations and indemnify; the chain is only as strong as the weakest/last link; breaks if any owner becomes untraceable or insolvent
• Leasehold structure: grant a long lease (999 years); leasehold covenants (positive and restrictive) run automatically under LT(C)A 1995; the most common mechanism for residential estates but subject to leasehold reform pressure
• Management company: each plot owner holds a share in the management company which owns the freehold/common parts and enforces estate obligations; practically effective but legally more complex than estate rentcharges or commonhold

Practical Impact on Landlords Buying Freehold Property

For landlords acquiring freehold investment property — whether a freehold house, a freehold with flats above, or a plot on a residential estate — positive covenants in the title require careful due diligence: (i) Review of the title register and title documents: the conveyancing solicitor should identify all positive covenants in the title deeds (pre-registration deeds; filed plan; copy documents); the existence of positive covenants that are not enforceable against successors (because no workaround mechanism was established) may indicate a risk of non-enforcement or a title defect; (ii) Estate management charges: where a property is on a freehold estate with estate management charges, the landlord (as freeholder) will be liable to pay those charges as a condition of owning the property; the LRHUDA 2024 Part 4 rights to challenge unreasonable charges provide some protection; (iii) Indemnity covenant on purchase: the buyer of a freehold property subject to positive covenants will typically be required to enter into an indemnity covenant in the transfer deed, agreeing to observe and perform the positive covenants and to indemnify the seller against any breach; this does not affect the original covenantor's liability to the original covenantee but it extends the indemnity chain; (iv) Title indemnity insurance: where a positive covenant was imposed on a predecessor in title but no mechanism to bind successors was established, title indemnity insurance may be available covering the risk that the original covenantee (or their successor) could pursue a claim against the original covenantor (who may then bring a claim against the indemnity chain); the insurance is limited to the personal contractual risk, not an in rem enforcement against the current owner; (v) Freehold estate charges due diligence: before acquiring a freehold on a managed estate, check: the management company's accounts; the level of service charges and ground rent (if any); the history of enforcement of estate obligations; whether the LRHUDA 2024 Part 4 rights have been exercised; whether the estate rentcharge amount is reasonable. Scotland: in Scotland, real burdens (similar to English covenants) can include both positive and negative obligations — the Title Conditions (Scotland) Act 2003 allows positive real burdens to bind successors in title, which is a fundamental difference from English law.

• Title due diligence: identify all positive covenants in the title deeds; check whether any workaround mechanism (estate rentcharge; indemnity chain; management company) is in place to make them practically enforceable
• Indemnity covenant on purchase: the buyer of freehold property subject to positive covenants will be required to enter an indemnity covenant in the transfer deed — observe and perform the covenants; indemnify the seller against breach; this extends the personal liability chain
• Estate management charges (LRHUDA 2024): freehold owners on managed estates have new rights under LRHUDA 2024 Part 4 to challenge unreasonable estate management charges at the First-tier Tribunal (Property Chamber)
• Title indemnity insurance: limited protection for the risk that the personal indemnity chain is broken or that the original covenantee pursues the original covenantor who then claims on the indemnity chain; not a substitute for a structural enforcement mechanism
• Scotland: the Title Conditions (Scotland) Act 2003 allows positive real burdens to bind successors in title — a fundamental and important difference from English law; Scottish buyers of freehold-equivalent land need separate advice

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