Privity of Estate and the Enforcement of Real Covenants

Abstract

The inability to enforce positive covenants against successors in title of freehold property in England, no matter how beneficial or reasonable, has been a persistent and seemingly intractable problem. But a comparison with the position taken in the jurisdictions of the US on this point reveals a marked difference in approach, where enforcement of covenants against freeholders is no more remarkable than it is against leaseholders. Curiously though, in both England and the US the same basis for the law is stated to be privity of estate. This article examines the meaning of privity of estate in both legal traditions to identify the disparity of definition and then focuses on whether the restricted meaning espoused by English law has been static and consistent. The conclusion is that it was English law which adopted a narrower view in the first half of the nineteenth century from a previous one more consistent with that of the US. Perhaps inevitably this led to the landmark case of Tulk v Moxhay which, of course, only provided a partial solution to the problem.