Court of Appeal overturns fishy decision – fencing covenants cannot be easements

Summary: Churston Golf Club Limited v Haddock [2019] EWCA Civ 544

The Court of Appeal has confirmed that a standard fencing covenant cannot be a 'fencing easement' capable of binding successors in title.

The facts

Mr Haddock, a tenant of a farm, sued the adjacent land owner, a golf club, on the basis that Mr Haddock's business had suffered as a result of the golf club's failure to maintain an effective fence along the boundary. The 1972 conveyance of the golf club's land contained a covenant to the purchaser, which stated that it must:

"maintain and forever after keep in good repair…stock proof boundary fences walls or hedges along such parts of the land…as are marked T inwards on the plan…"

The High Court held that the clause created a fencing easement, which bound and was enforceable against the golf club. Although it was established that fencing easements could be created by prescription or the doctrine of lost modern grant, this was the first example of an express obligation in a conveyance being held to create a fencing easement.

The golf club appealed, arguing that the clause was simply a positive covenant to fence, not an easement and that in any event, it was not possible to create a fencing easement by express grant.

The Court of Appeal allowed the appeal on the basis that the 1972 conveyance was professionally drafted and that the words used should be given their conventional meaning. Therefore, there was no justification for construing the clause other than as a positive covenant to fence, which was incapable of binding successors in title without a chain of indemnity covenants.

Given this conclusion, it was not necessary for the Court to decide whether a fencing easement could be created by express grant.

It is a well-established principle of English law that a positive covenant in a conveyance will not, by itself, bind successors in title, which was confirmed again in this decision. While it is still possible for fencing easements to arise by another means, the law is still reasonably ambiguous on the issue.

Our comment

The established principle that positive covenants do not bind successors in title remains. Where vendors of land wish for a fencing obligation to run with the land, it is important to include an appropriate mechanism in the transfer to ensure that it does.