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Court of Appeal Ruling Changes The Interpretation Of Fencing Covenants And Easements

Reasons to choose Wilson Browne

Whose responsibility it is to repair and maintain a boundary fence can have huge costs implications particularly for those who own large pieces of agricultural land.

There are two common mechanisms in which you can control the use and maintenance of the land being conveyed; easements and covenants.

In Churston Golf Club v Haddock [2019] EWCA Civ 544 the owner of farmland adjacent to the Golf Club argued that their business was being adversely affected by the Golf Clubs failure to “maintain and forever after keep in good repair… stock proof boundary fences walls or hedges along with such parts of the land… as are marked T inwards on the plan” as stated in a 1972 conveyance affecting the land which neither the Golf Club nor the farmer were an original party to.

The Golf Club argued that the conveyance referred to a positive covenant rather than an easement and so they were not responsible for maintaining the fence. The significance here is that an easement runs with the land (meaning that the burden/benefit passes from the original parties to their successors) but a positive covenant does not.

At first instance, the Court held that the wording of the conveyance “maintain and forever after” intended to burden the land rather than just the original parties to the deed. This meant that the conveyance created a fencing easement rather than just a covenant and so, the burden fell on to the Golf Club to maintain and repair the fence.

The Golf Club appealed this decision and it was heard at the Court of Appeal last week. On appeal, the Court held that a fencing covenant in a conveyance does not take effect as an easement unless is it expressly drafted as such. The fact that the covenant attempted to bind successors in title is not, in itself, an indication that the covenant is an easement when it is otherwise drafted as a positive covenant.

Following this ruling, the farmer was unable to rely on the covenant contained in the conveyance to oblige the Golf Club to repair and maintain the fence, which he said was having an adverse effect on his business. It is likely that this ruling will also have an impact on many others with personal and commercial properties.

The lesson to be learnt here is where a fencing obligation is intended to run with the land, it is important to ensure that the covenant is drafted in such a way that it is clear that the parties intend on creating an easement rather than just a positive covenant as it will otherwise be unenforceable against successors in title.

If you need any Commercial Property advice contact our Specialist Team