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I.
Introduction
Since the early nineteenth century, freehold covenants have occupied a central place in property law and continue to do so today. How and in what circumstances landowners and those acquiring land are bound by freehold covenants therefore really matters. It matters because whether land is burdened by a freehold covenant can have significant ramifications not just for the use to which the land can be put but also for its economic value, its saleability and its amenity. Perhaps unsurprisingly then, strict rules have developed as to when freehold covenants will and will not be binding under English and Welsh law. One intriguing and rather anomalous "workaround" to these often-harsh rules is the so-called "doctrine of benefit and burden". It is this "enforceability question" and the doctrine of benefit and burden in particular which form the focus of this article. This article revisits the origins and development of the doctrine and scrutinises its contemporary application in order to unearth a new perspective on the Law Commission's recent proposals for reform to the law of covenants which would see the introduction of an entirely new proprietary right, the "Land Obligation". In so doing, the theoretical and historical fragility of the doctrine of benefit and burden is exposed thus buttressing the case for reform. Yet, it is argued here that, if the Commission's significant reform proposals are to be accepted, a stronger and more convincing case must be made as to why the established, closed list of proprietary rights (the so-termed "numerus clausus") should be opened and expanded. This article explores the inherent difficulties of this commonly-overlooked numerus clausus "problem" and reflects on how it might be overcome and accommodated within the Commission's reform agenda.
The Law Commission estimates that around 80% of land in England and Wales is subject to at least one freehold covenant.1A freehold covenant is simply a promise made in a deed. A positive freehold covenant is a promise in a deed by one freehold land owner (the covenantor) with another freehold owner (the covenantee) whereby the former promises to actively do something on or in relation to his land for the benefit of the latter such as the planting of trees, the painting of fencing or...