A fencing covenant in a conveyance created an easement that bound successors in title to the land

According to the Court of Appeal in a trio of cases, Jones v Price [1965] 2 QB 618, Crow v Wood [1971] 1 QB 77 and Egerton v Harding [1975] 1 QB 62, the right to have a wall or fence kept in repair constitutes a right in the nature of an easement. And, as such, it is capable of running with, and of binding successors in title to, the servient land (even though is generally accepted that the owner of land subject to an easement should not be required to take any positive action or to bear any expenditure as a result). Critics have suggested that fencing easements are confined to cases involving animal husbandry. In addition, it has never been clear whether landowners can create fencing easements by imposing covenants in conveyances, because positive obligations in conveyances are personal to the parties and do not run with the covenantor’s land: Austerberry v Corporation of Oldham (1885) 29 Ch D 750. There are obvious tensions between Austerberry and the trio of Court of Appeal cases on fencing.  In attempting to explain the law, some academics have suggested that rights to require neighbours to repair fences cannot be created by “covenant” – and can be created only by prescription. Churston Golf Club v Haddock [2018] EWHC 347 (Ch); [2018] PLSCS 39 puts paid to this idea. On appeal from the Torquay and Newton Abbott County Court, the High Court had to decide whether a golf club had an obligation, as the leasehold owner of land, to fence its boundary with a farm. The county court judge had decided that the following clause in a 1972 conveyance created a fencing easement: “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 such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”. Was the county court judge correct? Did the positive obligation, which was expressed as a covenant, create an easement? Most conveyancers would classify the clause as a positive covenant. But the High Court noted that the trio of Court of Appeal decisions cited above made it clear that the origin of a fencing easement lies in grant. So it must, so the court reasoned, be possible to create such a right in a conveyance. Furthermore, the fact that parties have used the word “covenant” does not prevent a clause from taking effect as a grant – and a grant does not fall foul of Austerberry. The question was: had the parties created a fencing easement here? Despite a decision to the contrary based on similar wording in Sugarman v Porter [2006] 2 P&CR 14 (but in favour of unsold land only), the judge considered that the parties’ use of the words “forever hereafter” provided strong evidence of their intention to create a fencing easement – and decided that they had done just that. The judge stressed that this did not mean that attempts to create other forms of “positive obligation easements” would be successful; the courts have refused to recognise such easements. However, the courts have recognised that fencing easments can and do exist and that they run with the land. Allyson Colby