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Boundary Obligations

Lawyers are taught from an early stage that positive obligations, ie the obligation to spend money, do not transfer from one property owner to another automatically and that at each change in owner, there must be a direct contract between the property owner who is going to be required to spend money, and the property owner who will benefit from that money being spent.  For example an obligation to maintain a fence or wall.
This has led to the proliferation in recent years of extra bureaucracy at the Land Registry as these positive obligations are protected by a prohibition at the Land Registry (known as a restriction) requiring the consent of the benefiting property owner before a new owner can be registered.
Whilst restrictions are still needed if a property owner is to be forced to contribute to common parts, it appears that they may not be needed if the positive obligation is just to maintain boundary structures.   A recent case in the Court of Appeal, Churston Golf Club v Haddock [2018] EWHC 347 (Ch), has decided that these boundary obligations are not positive obligations but easements and therefore do automatically transfer to new property owners.
Easements are usually things like rights of way, or a right to lay pipes across someone’s land so deciding that a right to have a boundary maintained is an easement is not an obvious decision.  However, anything which reduces the need to use restrictions is to be welcomed as complying with restrictions adds to the cost and length of time of dealing with land transfers.  We will have to see whether lawyers are prepared to welcome this ruling and amend their documents accordingly.