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Lawbite: Do fence me in!

  • United Kingdom
  • Litigation and dispute management
  • Real estate litigation

09-04-2019

Churston Golf Club Ltd v Richard Haddock [2019] EWCA Civ 544

The Court of Appeal has overturned both the High Court and earlier County Court decisions and found that a covenant to fence should not be treated as a fencing easement capable of binding successors in title.

The claimant, CGC, was the tenant of a golf club, with the defendant, Mr Haddock, being the tenant of the neighbouring farm.  The covenant in question was contained in a 1972 conveyance of the golf club’s land from former owners to the local authority.  It provided that the local authority and all those deriving title under it covenanted to maintain and “forever hereafter keep in good repair” the fencing along certain marked boundaries with neighbouring land.

Mr Haddock sought a declaration that CGC and its landlord were liable to erect and maintain a fence or hedge between the parties’ land and sought damages for losses caused to his farming operations as a result of their failure to date to do so. 

The County Court and High Court decided that (i) a fencing easement could be created by express grant (as opposed to only by custom or prescription) and (ii) that the provision in the 1972 conveyance created such an easement.   

The Court of Appeal disagreed that the provision, expressed to be a covenant, had been converted into an easement.  The reference to the covenant being binding on successors in title did not change this even when it was settled law that positive covenants (such as this one to fence) do not bind successors.

Key to the Court’s decision was the fact that recent Supreme Court decisions on interpretation of professionally drawn documents confirm that the words used will normally be given their conventional meaning.  The obligation here was expressed to be, and therefore was, a covenant.

The appeal was allowed and the earlier decisions overturned.

In the circumstance the Court felt it unnecessary to consider the question of whether it was possible to create a fencing easement by express grant.  This was left for another case.

Key points

  • Fencing easements differ from “true” easements as they don’t allow the owner of one land (the dominant land which enjoys the easement) to do something over a neighbour’s land (the servient land over which the easement is exercised) which is a key characteristic of easements.  What they do is impose an obligation on the owner of the servient land which the dominant land owner can enforce.  Further, easements do not usually require the owner of the land over which the easement is enjoyed to spend money.
  • The case brings relief to some landowners and to property lawyers drafting such arrangements.

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