Fencing easement: So near yet so far!

For decades there has been a problem with enforcing obligations to maintain boundaries, where property changes hands. The Court of Appeal recently considered this issue in the case of Churston Golf Club Ltd v Haddock [2019], but resiled from creating an enforceable easement, confirming instead that a fencing obligation in a conveyance was a positive covenant and therefore could not bind future owners and occupiers.

The case serves as an important reminder of the law regarding fencing obligations. It further emphasises the importance of drafting clauses carefully to give effect to the parties’ intentions.

The facts

In Churston, a 1972 Conveyance contained, at clause 2, a “covenant” by the purchaser in favour of the owners of adjoining land (who were also a party to the Deed) as follows:

“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 along all parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”.

The current tenant of the adjoining land (Mr Haddock) subsequently sought to enforce clause 2 against the tenant (Churston Golf Club Ltd) of the land conveyed under the 1972 Conveyance. Mr Haddock argued that the obligation created by the 1972 Conveyance was a fencing easement and as such it bound any successors in title.

High Court decision

The High Court agreed with Mr Haddock and found that it was enforceable against Churston as tenant (and successor in title) of the land conveyed under the 1972 Conveyance.  Had the decision of the High Court stood, this case would have been the first example of an express obligation in a conveyance being held to create a fencing easement (in the proper sense).

Court of Appeal decision

Following an initial appeal to the High Court, which was dismissed, the Court of Appeal allowed Churston’s appeal, overturning the decision of the High Court.

The Court of Appeal held that there was no justification for construing Clause 2 as anything but a positive covenant to fence. Such covenants were incapable of binding successors in title without an appropriate mechanism to do so (e.g. a chain of indemnity covenants). Clause 2 was not a fencing easement.

Given its decision, it was unnecessary for the Court to go on to decide whether, as a matter of principle, a fencing easement could be created by express grant. That point, once again, remains unclear.

So what can be done?

The Court of Appeal decision brings the case back in line with the well-established principle of law that a positive covenant will not, by itself, bind future owners and occupiers. The decision also serves as a significant reminder of the importance of careful drafting to reflect the parties’ true intentions.

Where land is to be conveyed subject to a fencing obligation, that is intended to bind future owners and occupiers, a draftsman must include an appropriate mechanism in the transfer, to ensure direct covenants are provided by future owners/occupiers at the time of purchase or grant of tenancy. Without this, the obligation is unlikely to bind anyone but the original contracting parties.

Until we have a decision which specifically decides whether a fencing easement (in the proper sense) can be created by express grant, this is likely to remain best practice.