In a recent fascinating lecture, “New Housing, Old Rules: Can Land Law Keep up?: XXIV Old Buildings Lecture 2025,” by Oxford professor of Land Law Susan Bright (SSRN) (, she mentioned a couple of quotes I found intriguing. They concern the somewhat arcane and shifting English law having to do with positive covenants running with the land, and so on. (See my note to her below.) The quotes were:
From Leslie Turano, “Intention, interpretation and the ‘mystery’ of section 79 of the Law of Property Act 1925,” Conveyancer and Property Lawyer Conv. (Sep/Oct 2000): 377–397 (interesting part bolded):
Snape further argues that as long as there are methods to circumvent the prohibition on the running of positive burdens, then the basic rule should stay. But surely it is undesirable that people be encouraged to take circuitous routes to avoid the effect of a legal rule.
And also: she quotes Rudden as saying “to resort to fictions is preposterous.” The actual quote: Bernard Rudden, “Economic Theory v. Property Law: The Numerus Clausus Problem,” in Oxford Essays in Jurisprudence. Third Series, John Eekelaar and John Bell, eds. (Oxford: Clarendon Press. 1987) (interesting part bolded, and a delicious final paragraph):
It is understood, of course, that if total transaction costs exceed the difference in values to each of the two parties, an exchange will not be made. What has been argued in preceding sections is, however, first that transaction costs can be cut by a Landbook system; and it may be worth recalling in passing how the existence of efficient filing under UCC Article 9 has facilitated an extraordinary richness and variety of security interests in movables. Second, there is ample empirical evidence that the benefits are so great that people are prepared to incur the high costs of alternative, ‘fictitious’ (not to say, preposterous) schemes in order to capture them. While writing the final draft of this essay, I have been buying an apartment in an Oxford house containing only two: I took a 99-year lease ‘at a peppercorn rent if demanded’, as did my downstairs neighbour; the freehold was transferred to a manage-ment company in which each of us is the proud owner of a £1 share. Our costs were heavy.
We have seen that another main argument against unlimited freedom to create property interests is that they endure, while we do not. Alchian, however, points out (his emphasis) that ‘it is wise to remember that marketability implies capitalisation of future effects on to present values. Thus long-range effects are thrust back to the current owner … [who] will heed the long-run effects of current decisions more carefully .. .’. So, although not explicitly, it does appear that the numerus clausus will not stand with the Coase theorem: that, while the definition of rights is an essential prelude to market transactions, the ultimate result (which maximizes production) will, through the price mechanism (and absent transaction costs), prove independent of the legal definition. Yet, to say it for the last time, many apparently desirable things, such as claims to share occupation as against, or to have affirmative duties performed by, singular successors, either cannot be traded at all or must live in expensive disguise.
4.3 The problem
If all this be, at least in very general terms, correct, the economists are wrong and one of the following four propositions is the case. A world in which all resources are exploited in the economically optimal way would be oppressive to the individual freedom of landowners and house-holders; or, it is not economically efficient to have freedom in the creation of property rights; or, ifit is, the medieval lawyers were superior to the Romans and the modems; or, if we could be better, no legal system cares to try.
Professor Bright responded helpfully to a query about her talk, so I wrote her this back to explain my interest in this this topic (from her comments in the talk I am sure we disagree; her approach is more statist-positivist, paternalist, and hostile to freedom of contract):
Kinsella to Bright
I am a libertarian writer so most explore law and legal theory as it relates to that. I’ve long been fascinated with the common law, Roman law, and so on, and had not heard of this idea to have a commonhold. Trying to get more information on this now. Your discussion of how positive and negative obligations do or do not run with the land etc. I find interesting as similar issues come up in libertarian theory.
I also hold to a different view of contract based on Rothbard’s title-transfer theory of contracts that does not even view contracts as obligations at all but just as assignments of ownership to property. (The Title-Transfer Theory of Contract)
This would permit clever lawyers to arrange for things like trust, co-ownership, life estates, wills, restrictive covenants/negative easements, and so on, using a combination of contract and property rights. The legal debates over whether leases and mineral rights etc. are really contracts or property rights is interesting and has implications in today’s legal positivistic world but in the end in a libertarian legal world with freedom of contract and untrammelled property rights, much of this is just details or waiting to see what would evolve in such a world (so at present is premature to try to guess).
But for example I see no reason you cannot arrange ownership rights so that things now viewed as obligations–various covenants–cannot run with the land. You simply have a co-ownership arrangement between the primary owner and a negative servitude granted contractually to the owner of the neighboring estate, or a network of this in the case of a homeowners association. Since we do not view contracts as obligations in our theory, there are no positive obligations to run but just property-control rights.
It seems like your law that you were describing was attempting a hodge podge of something like this by allowing for positive obligations to enter through the back door by the various maneuvers you mentioned. I would prefer a more straightforward approach based on freedom of contract, co-ownership, based on the title-transfer theory of contract.
Libertarians sometimes wonder about these matters so I touch on it and answer questions from time to time, e.g. Libertarian Answer Man: Restrictive Covenants and Homeowners Associations (HOAs) and Libertarian Answer Man: Restrictive Covenants, Reserved Rights, and Copyright, but as I said, it is premature to do too much armchair theorizing or attempt to write or deduce a full pure libertarian law code from scratch. That is not how law can or should develop. So I have focused on a more general and abstract statement of principles that should serve as a sort of platform for any future free society’s legal system to build on, which I lay out here The Universal Principles of Liberty.
Incidentally I am a retired patent attorney and have long been opposed to all forms of intellectual property law. My ultimate opposition is based on recognizing that patent and copyright law are not actually property rights to information or ideas, as is commonly held, but are simply disguised forms of negative servitudes or easements–but unlike those in contractually-negotiated restrictive covenants or homeowners associations, they are nonconsensual.
I am unaware of other scholars classifying IP rights this way but this seems to be to be fairly straightforward and lays bare the problem with IP rights: they are uncompensated takings of property rights because they are nonconsensual negative servitudes — Intellectual Property Rights as Negative Servitudes.
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Re the “commonhold” issue and recent and proposed English and Wales legislation, see the Grok report below and:
- Ministry of Housing, Communities & Local Government Policy paper Commonhold White Paper: The proposed new commonhold model for homeownership in England and Wales 19 March 2025
- Leasehold and Commonhold Reform Statement made on 21 November 2024 Statement UIN HCWS244 Statement made by Matthew Pennycook Minister of State for Housing and Planning Labour Greenwich and Woolwich Commons
- Law Commission, Residential leasehold and commonhold
- Major Change for Leasehold Ownership in England and Wales – The Commonhold and Leasehold Reform Bill 29 January 2026
- MPs step forward in the new All Party Parliamentary Group for leasehold and commonhold reform May 26, 2025 // by Sebastian O’Kelly
- 21 Aug 2025 Norma Cohen UK land and property: what’s happening with freehold and leasehold reform?
- What we know about the upcoming Commonhold and Leasehold Reform Bill 19 December 2025 / By Suzanne Smith
- Leasehold reform in England and Wales: What’s happening and when? Constituency casework Friday, 06 February, 2026 Hannah Cromarty
- The Limits of Contractual Freedom in English Commercial Leases 14 Mar 2011 Susan Bright
- Far from Privatopia: Private Residential Estates in England and Wales 9 Mar 2022 Susan Bright
- Careful What You Wish For: Positive Freehold Covenants (3) The Conveyancer and Property Lawyer 191-207, 2011 Pamela O’Connor
Grok:
Commonhold is a form of property ownership in England and Wales designed specifically for multi-unit buildings like apartments or flats. It allows individual owners (known as “unit holders”) to own the freehold of their specific unit outright, with no expiring lease term, while collectively owning and managing the shared or common parts of the building (such as hallways, roofs, gardens, or elevators) through a democratic commonhold association—typically structured as a limited company. This setup aims to give owners greater control, transparency, and long-term security compared to traditional leasehold arrangements, where a leaseholder only has a temporary right to occupy the property (often for 99 or 125 years) and must pay ground rent or service charges to a freeholder, who retains ultimate ownership.
Under commonhold:
- Each owner has a perpetual freehold interest in their unit, eliminating the need to extend leases or worry about diminishing value as the lease shortens.
- The commonhold association handles maintenance, insurance, and budgeting via standardized rules, with decisions made by majority vote among owners to promote fairness and participation.
- Reserve funds are mandatory for long-term repairs, and directors (elected from owners or professionals) oversee operations, with mechanisms to replace them if needed.
Commonhold was first introduced by the Commonhold and Leasehold Reform Act 2002 as an alternative to leasehold, but it failed to gain traction—fewer than 20 commonhold developments exist today due to legal complexities, lack of lender support, and developer preferences for profitable leasehold models. Around 2024, Parliament addressed longstanding criticisms of the “feudal” leasehold system (affecting about 5 million properties) through the Leasehold and Freehold Reform Act 2024, which received royal assent on May 24, 2024. This act made it easier and cheaper for leaseholders to extend leases, buy freeholds, or manage their buildings, while banning new leasehold houses (but not yet flats) and implementing some Law Commission recommendations on enfranchisement and right-to-manage processes.
However, the 2024 act did not fully reform commonhold, leaving that for future legislation. Following the July 2024 general election, the new Labour government committed in its manifesto to end leasehold entirely and “reinvigorate” commonhold as the default tenure for flats. This led to a Commonhold White Paper in March 2025 outlining a modernized framework, followed by a draft Commonhold and Leasehold Reform Bill published on January 27, 2026, for pre-legislative scrutiny. Key proposals include banning new leasehold flats (making commonhold mandatory for most new multi-unit builds), simplifying conversions from leasehold to commonhold, capping ground rents on existing leases, abolishing forfeiture (where leaseholders could lose their home over small debts), and enhancing owner protections like mandatory reserve funds and annual budget votes. A consultation on the ban ran until April 2026, with full implementation expected by the end of the current Parliament (around 2029).
These reforms stem from a 2020 Law Commission report highlighting commonhold’s potential to fix leasehold’s flaws, such as escalating costs and lack of control, though challenges like developer resistance, lender buy-in, and ongoing litigation over the 2024 act’s human rights implications could delay progress.
