Whether you own freehold or leasehold property or are considering purchasing residential or commercial property, the Court of Appeal’s decision in the case of Churston Golf Club Limited v Richard Haddock will be of interest to you when considering your responsibilities when it comes to fencing land.
The Court of Appeal has now heard the appeal from Churston Golf Club Limited (the Golf Club) following the High Court’s determination last February in the initial proceedings (Churston Golf Club v Haddock [2018] EWHC 347 (Ch)).
Court of Appeal Proceedings
The appeal advanced on two grounds:
- Whether an obligation to fence was simply as a covenant to fence or did it create an easement of fencing (a fencing easement) in favour of Mr Richard Haddock’s property; and
- If it did create a fencing easement, is it possible to create such an easement by express grant?
Background
To give this case a bit more context, here are the brief facts of it:
- The land in question had been the subject of a conveyance in 1972. The current owners/occupiers (the parties in this case) were concerned about clause 2 in the conveyance, which stated:
“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 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 parties each owned and occupied land adjacent to each other.
- The obligation to maintain the boundary fences, in clause 2, was upon the Golf Club.
- Mr Haddock wished to enforce the obligation in clause 2 against the Golf Club on the basis that this was a fencing easement.
- Mr Haddock issued proceedings against Torbay Borough Council (the freehold owners of the land adjacent to Mr Haddock’s land) and the Golf Club (as the leasehold owners of land under a 999 year lease).
- He alleged that his farming operations had been adversely affected by the failure to maintain an effective fence or hedge along the boundary between the two parcels of land in accordance with clause 2.
- Mr Haddock sought damages of between £150,000 and £200,000.
Fencing Easements
To add further confusion to this issue, fencing easements do not comply with the ordinary rules on easements. They are often referred to as spurious easements because the landowner upon whom the obligation to fence rests usually has to incur the expense of maintaining the fence(s) for the benefit of the adjacent landowner. They are more akin to a positive covenant. However, maintaining their helpfully unique status, unlike positive covenants generally, fencing easements do bind successors in title.
The determinations of the High Court and Court of Appeal are limited to fencing easements and should not apply generally to positive covenants.
Court of Appeal Decision
That being said, Pattern LJ delivered the leading judgment in this appeal. Pattern LJ confirmed, in respect of ground one of the appeal, that there was no justification for construing clause 2 as anything else but a positive covenant incapable of binding successors in title without a chain of indemnity covenants. It was determined that the 1972 conveyance was drafted professionally and the words in clause 2 should be given their conventional meaning.
As a result of the finding in respect of ground one of the appeal, the Court did not then go on to determine whether it was possible to create a fencing easement by express grant. Instead the Court stood by the decision in Crow v Wood [1971] 1 QB 77 and left any further consideration of this point to a case in which the issue of whether a fencing easement can be created by way of an express grant is essential to the outcome of the appeal.
Comment
While the case did not address all the points in the appeal, some comfort can be taken from this determination in that fencing easements are to be regarded as positive covenants, which are capable of running with the land and binding successors in title, providing a chain of indemnity is in place. If the conveyance expressly sets out a positive covenant to maintain a fence, it ought to be treated as a positive covenant even if it relates to fencing.
This highlights the importance of drafting clauses correctly to give effect to the true intentions of the parties. The default position is that if the document is professionally drafted the wording used should be given its conventional meaning.
Therefore, when it comes to drafting, be clear, be straight and if in doubt contact our expert Property Disputes team and we will be happy to make sure your interests are adequately “fenced off” and protected.
How Nelsons Can Help
If you have any questions in relation to the topics discussed in this article, please get in touch with a member of our Property Disputes team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.