Halsall v Brizell
The case of Halsall v Brizell [1957] concerned the doctrine of mutual benefit and burden. It said that a person could not take the benefit of a deed without subscribing to the obligations under it. In other words, if a provision granting an easement also includes an obligation to contribute to the cost of maintaining it, a person cannot exercise the easement without making payment. This can be important in resolving issues around enforceability of positive covenants (covenants to do something or pay some money).
The basic position is that positive covenants in freehold land are not enforceable against successors in title to the original covenantor. So, if a deed includes a covenant by the transferee to contribute to the cost of maintaining a private access road, and the original covenantor sells their property, the purchaser is not bound by that covenant. The original covenantor is still bound but is less likely to volunteer to contribute and will eventually die and their estate will not be bound, so the covenant ceases to be enforceable, but for mutual benefit and burden.
To be effective, the covenant should be tied to the easement, for example "a right to use the Access Road for the purpose of gaining access to and egress from the Property subject to contributing a fair proportion of the cost of maintaining and repairing the same". The owning of the property then has a choice, either refrain from using the access road so that they do not have to pay, or use the road and make the payment. In practice though, choosing not to use the easement is often not a viable option since it is usually essential.
Reservations
A "reservation" or reserved right is an easement that a landowner imposes against land he sells, for the benefit of his retained land. It is important to remember that neither s62 Law of Property Act 1925 nor the rule in Wheeldon v Burrows will operate to save quasi easements that are exercised by a transferor, so that when selling part of a parcel of land a seller needs to think about what rights he might need over the land he sells, such as rights of access, or to use service media (or install new service media) or access to repair or to tie into existing structures on the sold land. Reservations should be in a similar form to grants, except that they will be expressed to be in favour of the transferor rather than the transferee and will be expressed to benefit the retained land.
