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(1885) 29 Ch D 750 (CA). The defendants purchased a piece of land which was subject to a Covenant to keep a road in good order. They failed to meet this obligation, and the landowners for whose benefit the covenant had been made sought to enforce it through freehold covenants. They failed, because the principle in Tulk v moxhay (1832) -- that equity will intervene to prevent a purchaser with notice from denying the existence of a restrictive covenant -- did not extend to convenants of positive obligation. In short, the burden of a positive covenant does not run with the land.

The rule in Austerberry has been heavily criticized, but continues to be enforced by the courts (see Rhone v stephens (1994)). In some cases, its effect can be mitigated by application of the rule in Halsall V Brizell (1956).

At common law, the burden of a restrictive covenant does not run except where strict privity of estate (a landlord/tenant relationship) exists. <ref>Austerberry v Oldham Corporation (1885) 29 Ch D 750</ref>

Notes

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