Konstantinidis v Townsend

An easement does not ordinarily impose on the servient owner a duty to repair or maintain facilities needed for its enjoyment. Such a positive obligation must arise from an express contract, special local custom, or a legally sufficient quasi-contractual request. Quasi-contract cannot support a prospective declaration binding successors in title which allocates all future repair, replacement and maintenance costs merely by reference to use. The court must identify the specific expenditure and the circumstances making contribution appropriate. Relevant considerations include the relationship between use and cost, responsibility for damage, depreciation, the value of mere availability, and the accounting period. Where those matters remain unresolved, the declaration cannot be made.

The claimant owned No 6 Further Granary Cottages, which had a registered right to draw water from a borehole on the defendant’s adjoining land. The parties used the same pump and filtration plant and had informally shared their running and repair costs.

Following a dispute, the claimant sought declarations requiring the defendant and other users to contribute to maintenance and replacement costs. The Norwich County Court, before Mr Recorder Evans, ordered that the costs of supplying water through the borehole, including repairs, maintenance and replacement of pumping equipment, be borne rateably by volume by users from time to time. The defendant appealed.

The central issue was whether the proposed contribution obligation could be justified by the law of easements, the benefit-and-burden principle, or quasi-contract.

1. Appeal allowed. The Vice-Chancellor delivered the judgment, with Lord Justice Kay and Lord Justice Sedley agreeing. The declaration made by the Recorder was set aside.
2. The general law of easements ordinarily confers ancillary rights reasonably necessary for the exercise of the easement. It does not, however, ordinarily require the owner of the servient tenement to carry out repairs. In the absence of special local custom or express contract, the dominant owner must generally look after himself: Duke of Westminster v Guild [1985] QB 688. The same normal rule applied to obligations said to be transmissible to successors in title.
3. The claimant could not rely on the benefit-and-burden principle. As explained through Tito v Waddell [1977] Ch 106, subject to the limitation stated in Rhone v Stephens [1994] 2 AC 310, that principle concerns a deed or other document which confers a benefit and imposes a burden. No conveyance or other document in evidence imposed on users an obligation to contribute to repairing or improving the borehole, pump or filtration plant.
4. A quasi-contractual liability might arise from an implied request in relation to particular expenditure and particular circumstances. The court could not, however, infer a sufficient request for every future repair or replacement. The proposed declaration ignored possible disagreement about the timing and nature of works, damage caused by one user, depreciation, the value of mere availability to a weekend cottage, and the absence of an accounting period. There was no necessary correlation between water use and the cost of maintaining the system.
5. The Recorder’s order therefore went beyond declaring a liability arising from actual events. It purported to govern all future expenditure solely by reference to use and would bind successors in title. That was not justified by ordinary quasi-contractual principles. The parties’ temporary agreement to continue sharing costs in proportions of 70:30 did not alter the proper disposal of the appeal.

1. Court of Appeal (Civil Division) On 20 March 2003, allowed the appeal and set aside the declaration.
2. Norwich County Court Mr Recorder Evans ordered that the costs of supplying water through the borehole, including repairs, maintenance and replacement of pumping equipment, be borne rateably by volume by users from time to time.