Making Land Work: Easements, Covenants and ... - Law Commission

expensive and time-consuming, and some of the methods used can be risky and
uncertain. The existence of these indirect methods of enforcing positive
obligations shows the desire for and practical importance of positive obligations;
and the fact that the law permits these methods shows that there is no consistent
policy that positive obligations should not be attached to land.
5.38 The “workarounds” described above are products of the determination of
practitioners in the face of a prohibition imposed by Keppell v Bailey that impedes
the arrangements that their clients want to make. So the task for this project is
not to justify positive obligations, starting from a clean slate, but to recommend
reforms that would provide a simpler and more practicable method to achieve
what can already be done, in a way that minimises the economic burden upon
properties and their owners.
5.39 In answer to our questions about the problems associated with freehold
covenants, 65 the majority of consultees felt that the burden of positive obligations
should run. 66
5.40 Herbert Smith LLP, for example, said:
It is clearly wrong in concept that parties should be required to adopt
some, often complicated, mechanism or, worse, a legal estate
structure which would not otherwise be adopted, in order to achieve
security on positive covenants.
5.41 The Chancery Bar Association added:
We agree that it is a serious practical problem and injustice that
positive covenants cannot be enforced directly between the
successors in title to the original land owning contracting parties, in
particular in the case of fencing and maintenance covenants.
5.42 Letitia Crabb 67 and the Charities’ Property Association expressed the view that if
the main concern is inter-dependent units, the solution is to be found in specific
legislation, such as commonhold. However, the main concern is not
interdependent units but rather the gap in the current law, which commonhold
does not address and for which it is not suitable. It remains impossible to use a
simple legal structure to manage responsibility for mending a fence between
properties, or a single facility shared by a few properties. Other consultees
agreed that there is still a need for reform despite the introduction of
commonhold. 68
65 Consultation Paper, paras 7.59, 7.66, 7.79(1) and 7.80.
66 See the Analysis of Responses, paras 7.1 to 7.32.
67 University of Reading.
68 We asked this specifically in the Consultation Paper, para 7.66. See the Analysis of
Responses, paras 7.12 to 7.20. Pamela O’Connor, in the article cited above at para 5.35 n
61, notes that very few jurisdictions have introduced both binding positive covenants and a
strata title system. We have taken the view that the combination of both is desirable here,
because of the use of alternative and cumbersome workarounds, because of the views of
consultees, and because commonhold is so little used.
105