“The Purchaser hereby covenants with [the neighbouring landowner] 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”
The question for the Court of Appeal was to determine whether the above clause of a conveyance amounted to a covenant or an easement and, if it was an easement, whether such an easement may be created by express grant. In the High Court, Birss J affirmed the decision of HH Judge Carr and held that the clause created a fencing easement but (rightly) rejected that, looked at simply as a covenant, the Law of Property Act 1925 s79 would not have passed the burden to successors in title, pursuant to the decision of the House of Lords in Rhone v Stephens [1994] 2 AC 310.
Fencing easements
In the words of Patten LJ, “fencing easements… have a long history but an uncertain legal basis” (para 11). Perhaps the most well-known case concerning fencing easements is Crow v Wood [1971] 1 QB 77, in which Lord Denning expressed the view that fencing easements could be created under the Law of Property Act 1925 s62. There is also a wealth of authority that fencing easements may be created by prescription or through custom.
The residual uncertainty that the Court of Appeal needed to grapple with in Churston Golf v Haddock is whether such easements may be created by express grant. In the High Court, the burdened landowner maintained that such easements could not be created expressly without falling foul of the rules in Austerberry v Oldham Corporation (1885) 29 Ch D 750 and Rhone v Stephens. However, Birss J relied on Crow v Wood and decided that, as fencing easements may be created through section 62, and section 62 easements lie in grant (as indeed does prescription), it necessarily follows that fencing easements may be created by express grant.
Court of Appeal
Patten LJ held that, properly construed, the above clause did not create a fencing easement. Instead, the obligation to fence took effect as a covenant which, being positive in nature, would not bind successors in title to the Purchaser. Patten LJ made reference to Arnold v Britton [2015] AC 1619 and placed great weight on the fact that the document was clearly drafted by professional conveyancers aware of the rights and obligations that they purported to create, as well as the limitations, technicalities and effect of those rights. In particular, the draftsmen would have been aware that the obligation, if it was in fact a positive covenant, would not run to successors in title, and the conveyance as a whole included other easements and restrictive covenants drafted in unambiguous terms. Therefore, there was no justification for construing the language of clause as anything other than a covenant, or that it was intended for the obligation to endure beyond the original contracting parties.
Having decided as a matter of construction that the relevant clause did not purport to create a fencing easement, there was no need to decide whether, in principle, such easements could arise by express grant. Patten LJ held that “further consideration of this issue is best reserved to a case in which the point is essential to the outcome of the appeal” (para 36).
Both Baker and Nugee LJJ agreed with the decision of Patten LJ.
Thoughts
Two immediate thoughts spring to mind when reading Churston Golf v Haddock.
First, fencing obligations should in the future take effect as land obligations, subject to the Law Commission’s proposals regarding such obligations finally being enacted. As such, the need for, and relevance of, fencing easements will deteriorate. Against that contextual backdrop, the failure of the Court to deal with the legal basis of fencing easements and whether they may be created by express grant is not so problematic. However, the noise around the proposals regarding the land obligation has quietened recently, with the legislative agenda having more ‘acute’ issues of concern. Therefore, in the absence of any immediate indication of progress, it is perhaps disappointing that the Court did not take the opportunity to clarify the legal basis of rights that may continue to be created in the near future.
Second, and following the above, even once the land obligation does come into force, fencing obligations created before the enactment of the relevant legislation will still exist. Indeed, many land owners will have engaged in conveyances where boundaries are marked as subject to an obligation to fence. The decision in Churston Golf v Haddock would seem to suggest that, in the absence of any additional factors, these obligations would take effect as positive covenants; those covenants will not run with the land, meaning many boundary fences will not have to be maintained. If landowners do want to argue that express fencing obligations are easements that bind successors in title, there is as yet no guidance as to whether that argument is viable.
Land and Property Law Blog 