Phillip Taylor MBE book review: Positive Covenants and Freehold Land

BOOK REVIEW POSITIVE COVENANTS AND FREEHOLD LAND By Christopher Jessel ISBN: 978 0 85490 269 9 Wildy, Simmons & Hill Publishing www.wildy.com ‘AN ENGLISHMAN’S HOME IS HIS CASTLE’: EXPERT AND AUTHORITATIVE GUIDANCE ON POSITIVE COVENANTS An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator If you are a lawyer dealing with freehold property and related matters, this is the book for you. Such are the intricacies, technicalities, subtleties and complexities of ‘positive covenants and freehold land’, that the publication of this book will certainly be welcomed by practitioners in search of an authoritative and very handy legal text on the subject. And here it is, published by Wildy, Simmonds & Hill. Author, Christopher Jessel, is careful to define key legal terms at the beginning of the text, as they are fundamental to the understanding of the subject in its entirety, starting with “positive covenants.” A covenant, of course, is a promise — in this context, “a solemn legal promise, usually in the form of a deed,” says Jessel, although it can be created in other ways. As a “positive obligation” it is a commitment to do something, so a “positive covenant” requires action, except that it binds only the person who has given it. Conversely, a “restrictive covenant”, like a “restrictive obligation”, effectively prohibits action in that it can bind land- something the common law was never too keen on. Other key terms are defined specifically in the text (because they do have specific and precise meanings) — including “neighbour covenants” (fences, etc), “facilities”, “service charges” and more. Covenants referred to in this text, says the author, ‘principally affect people living or working near one another, whether as neighbours, or sharing common facilities on an estate. Whether the covenant is for physical work, or for the payment; of money, it has to benefit land.’ Interestingly, the time honoured observation that ‘an Englishman’s home is his castle,’ was made in a case of 1604 concerning a lease. Jessel observes here that ‘by the seventeenth century, English law had come to protect rights to property as almost a supreme value,’ adding that, in his view, the English civil war was, at least partly, was fought “out of concerns that property rights were at risk of being overridden by King Charles I.” (Let’s hope that a future government won’t regard property rights in a similar vein.) Essentially, the book deals with the long-established rule that, as the author puts it, ‘a positive covenant binding freehold land cannot be enforced against a successor in title to the original covenanter.’ There is much discussion on this point, including references to various devices ‘to outflank the rule.’ Readers requiring additional insights and information will be pleased to note the extensive tables of cases, statutes, statutory instruments, Land Registry publications and international conventions. Plus - there are more than thirty pages of precedents. For property lawyers, property owners and developers alike, this book is a useful acquisition. The date of publication of this hardback edition is 29th May 2019. Do visit the publisher's website for their latest editions and new titles.