Commentary on Sections Part 1: Real Burdens: General Section 9: Persons against whom burdens are enforceable
67.In the past it was unclear whether liability extended to parties connected with the burdened property other than the owner. Section 9resolves this doubt by identifying who has liability in respect of a real burden. The terminology (“affirmative”, “negative” and “ancillary” burdens) is explained in the note on section 2.
68.Subsection (1)provides that burdens which provide for an obligation to do something (an affirmative burden) should only be enforceable against the owner of the benefited property.
69.Subsection (2)provides that burdens other than affirmative burdens (negative or ancillary burdens) should be enforceable against anyone having use of the burdened property.