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Report Thread starter 6 years ago
Benny was the registered proprietor of Blackare, a freehold estate comprising a large detached house surrounded by five acres of land. In 2000, Benny sold and transferred one acre of the land to Mabel, who planned to build herself a house on this land. In the transfer, Mabel covenanted with "Benny, his heirs and assigns" as follows:

(a) to erect and maintain a boundary wall between Mabel's land and the remainder of Benny's land;

(b) to use the land solely for private residential purposes;

(c) not to build more than one house on the land

The transfer also gave Mabel a right to share the use of Benny's driveway in order to access her land, provided that she paid a fair proportion of the costs of maintenance of this driveway.

In 2008, Benny sold the remainder of his land to Peter.

In 2012, Mabel sold her land (on which she had built one house) to Joseph.

Joseph is a property developer and has now obtained planning permission to build 5 more houses on the land. He is refusing to contribute towards the maintenance of Benny's driveway because he is building a new access road which will lead directly from his land to the main road.

Advise Peter.


I am confused with Benny's driveway, it appears that it is prima facie an easement, but can it be a positive covenant too?

Many thanks!
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Report 6 years ago
I think it is just looking for you to make some benefit and burden point about the contribution to maintenance of the driveway. That is, can Peter enforce that covenant against anyone (whether that be Joseph or Mabel).

You could say something about the easement of using the driveway but it seems like the party with that right has no intention at all of using it. That makes an easement discussion somewhat otiose but it is relevant to the benefit and burden point.

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