Covenant (law)
England and Wales

The burden can be enforced at law in limited circumstances under the benefit/burden test - that is, whoever takes the benefit must also shoulder the burden. In Halsall v Brizell Ch 169, a covenant requiring the upkeep of roads was found to bind the successor in title to the original covenantor because he had elected to take the benefit. The rule in Halsall v Brizell is limited to cases where the benefit can be linked to a specific burden and where the covenantor's successors in title can physically elect to take the benefit. For example, a restrictive covenant to contribute to the maintenance costs of a common area will not be binding if the covenantor's successors in title have no legal right to use them. Rules for ascertaining whether the benefit of a covenant has been passed to another person who wishes to enforce the covenant were summarised in Small (Hugh) v Oliver & Saunders (Developments) Ltd. in 2006, namely by an express assignment of the benefit, through a building scheme arrangement, usually for a new development of multiple properties, or through the application of section 78 of the Law of Property Act 1925, which only applies for covenants made since 1 January 1926.
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