Can an obligation in a conveyance to maintain fencing take effect as an Easement?

In the recent case of Churston Golf Club v Haddock, the High Court considered whether an obligation to maintain fencing contained in a conveyance could take effect as an easement and not as a positive covenant.

The Facts

The case centred on the following clause of a conveyance between the buyer and the owners of adjoining land (the land at the Golf Club) made in 1972:

“The Purchaser hereby covenants with the Trustees that the Purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences walls or hedges…”

The current tenant of the adjoining land sought to enforce the above clause as a positive obligation against the current tenant of the land conveyed.

The Issue

The question of whether or not the above clause would burden the purchaser of the property (Churston Golf Club), revolved around two main points:

1. Is it legally possible for a clause in a conveyance to create a fencing easement; and
2. On the basis of its construction, can said clause have that effect?

Fencing easements work as an exception to the general rule that easements cannot impose positive obligations. Fencing easements are usually established by prescription and other approaches based on long use – historically accomplished by relying on the Doctrine of Modern Lost Grant.

Decision

The neighbour to the Golf Club was successful in their claim that the clause created a fencing easement. From the wording of the 1972 conveyance, it was clear that the fencing easement was always intended to pass with the Land (it does so both at common law and pursuant to Section 78 (1) of the Law of Property Act 1925). The construction of a clause will determine whether or not it creates a fencing easement. In this instance, “forever hereafter” showed that the parties had intended the obligation to fence the land to last into the future, even if the original purchaser ceased to exist. It did, objectively, create a fencing easement, the burden of which passed to Churston Golf Club.

The Judge agreed that it was clear that a clause could take effect as an easement, even if the clause was framed as a covenant (the buyer “hereby covenants”). Though the clause of Churston Golf Club v Haddock does not do so, it may be wise to use the word “easement” in order to put the intention of the parties beyond doubt.

Reflection

The concept of a fencing easement that binds its’ successors is anomalous. Indeed, this is the first example of an express obligation in a conveyance being held to create a fencing easement.

Given the general rule that positive covenants do not run with the Land, the Judge’s decision to uphold the ruling seems to be an example of the Courts attempting to give effect to the original parties’ intentions. However, this could be an instance of a Judge imbuing intent where there is none. It seems counterintuitive to disregard one aspect of the clause, “The Purchaser hereby covenants”, while upholding another, “forever hereafter” to give one effect – here, that a positive obligation is created. When by doing the reverse, a different, result in favour of Churston Golf Club would occur.

Fencing easements are a legal oddity, created by the Courts through a series of contortions of legal logic. The positive obligations that they invoke would usually prevent them from being regarded as easements at all. As such, this decision should be approached with caution. While the decision in Churston Golf Club provides precedence that such covenants can be granted by express deed, there will likely be further legal argument as to the requirements of their wording.

UPDATE

The decision of the court has since be overturned by the Court of Appeal which has held that a fencing covenant in a conveyance did not take effect as an easement. It was a positive covenant and, as such, could not bind successors in title. It is a well-established principle of English law that a positive covenant in a conveyance will not, by itself, bind successors in title, so this decision puts the parties on a more settled legal footing.