Churston Golf Club v Haddock [2019] – don’t fence me in!

We reported last year on the case of Churston Golf Club v Haddock [2018] when the High Court decided that an express obligation to fence property could be an easement to fence and therefore bind future owners.  The Court of Appeal has recently overturned this decision and held the opposite view - that it was a standard form of fencing covenant and not an easement.  So what is the difference between an easement to fence and a covenant to fence and what are the practical implications?

Facts of the case

The following fencing obligation was contained in a 1972 conveyance:

“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 stockproof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto.”

Mr Haddock (a tenant farmer of the “Trustees” referred to in the clause) sought a declaration in the county court that the Churston Golf Club (the successor in title to the “Purchaser” in the clause) was obliged to fence the boundary between their respective parcels of land.  Mr Haddock succeeded as the county court held that a fencing easement existed, the burden of which had passed to the golf club.

Churston Golf Club appealed to the High Court which took the view that the words “forever hereafter” showed that the original parties had intended the obligation to fence the land to continue into the future.  This was the intention even if the original “Purchaser” referred to in the 1972 conveyance had sold on and therefore a fencing easement had been created.

The golf club successfully appealed to the Court of Appeal; the court held that the clause in the 1972 conveyance was simply a positive covenant to fence which meant that the obligation to fence off the land did not pass to the golf club.  Although the Court of Appeal decision was welcomed, the court did not go on to consider whether it is possible to create a fencing easement by express grant, so that decision remains open for debate in a later case.

Easement or covenant?

Fencing obligations are important, particularly in rural areas, where it is vital to fence off land or plant hedges to stop farm animals from straying and causing damage.  The difficulty with fencing obligations is that they are sometimes regarded as a fencing easement where they are expressed (as in this case) with the intention of binding a landowner to “forever hereafter” maintain fences or other boundary features around their land.

An easement is created where a right is either granted or reserved over land in separate ownership; this right attaches to the land and binds subsequent owners.  However, as a true easement does not require the payment of money and an obligation to fence generally does, a fencing easement is more like a positive covenant.  Not surprisingly, fencing easements are regarded as “spurious” easements and in previous cases, it has never been established how far a court would regard such an obligation as an easement.

A positive covenant generally imposes an obligation to do something or require expenditure of money and, by itself, will not bind future owners.  In order to enforce a positive covenant, a mechanism has to be put in place to ensure that on the sale of the land burdened by the covenant, that this obligation passes down to successive owners, usually though a chain of indemnity covenants.  These covenants need to be specifically included in the transfer between the original parties, with a requirement that subsequent owners will enter into a deed of indemnity, backed by a restriction registered against the land subject to the covenant, to ensure this will be done.

This case highlights the importance of careful drafting when the intention is for any obligation to pass on to future owners of the land.  Bevan Brittan’s property team have considerable expertise in this area whether it is putting safeguards in place to ensure a positive covenant can be enforced in the future, or advising landowners on the enforceability of existing covenants and easements affecting their land.

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