144: Fencing Easements – A positive covenant that can be enforced by successors

A ‘fencing easement’ is an obligation on the owner of land (the servient land) to maintain a fence or other boundary structure for the benefit of neighbouring property (the dominant land). Fencing easements are often described as a ‘spurious easement’ or ‘quasi-easement’ because (unlike easements in general) they provide a right to impose a positive obligation on the owner of the servient land.

In the recent case of Churston Golf Club v Haddock the High Court provided clarification on fencing easements and specifically how they can be created and whether they can run with the land.

Background

In 1972 a golf club sold its land to Torbay Borough Council. The terms of the conveyance of the property included an obligation on ‘the purchaser and all those deriving title under it’ to ‘maintain and forever hereafter keep in good repair at its own expense…boundary fences’ along those parts of the land adjoining a neighbouring farm.

Churston Golf Club, the defendant, subsequently took a lease of the land. Mr Haddock, the claimant, was the tenant of the neighbouring farm and the successor in title to the beneficiary of the fencing obligation contained in the 1972 conveyance. A dispute arose between Churston Golf Club and Mr Haddock in relation to this fencing obligation and at first instance it was upheld that Churston Golf Club had an obligation to maintain the fence boundary between the club and the farm, a decision that they appealed.

Appeal

The High Court were required to decide two issues:

1. whether it was legally possible for a clause in a conveyance to create a fencing easement at all; and
2. whether on its true construction the clause has that effect.

Decision

Issue One

In relation to the first issue the High Court found that as a matter of law it is possible for a clause in a conveyance to create a fencing easement. Whilst easements do not generally provide a right to impose a positive obligation on the owner of servient land an obligation to build and maintain a fence which runs with the land and therefore affects successors in title is established law.

The High Court referred to three cases decided by the Court of Appeal in the 1960s and 1970s which confirmed this and also provided guidance on the legal bases on which a fencing easement can arise. These cases confirmed that a fencing easement can arise by virtue of prescription or lost modern grant (a legal fiction based on proving that a use or thing has been ongoing for a long time therefore creating a presumption that there must have been an express grant of this right which has since been lost).

The High Court concluded that as a fencing easement can be established by way of lost modern grant it must follow that they can be granted expressly, such as by a conveyance. Whether a clause in a conveyance does in fact create a fencing easement however is a question of fact based on the construction of the clause.

Issue Two

The High Court reviewed the wording of the fencing obligation contained in the 1972 conveyance against the four requirements that must be satisfied in order for an easement to be established:

• there must be dominant land and servient land – in this case the neighbouring farm was the dominant property and the golf club land the servient property;
• a benefit must be conferred on the dominant land – here this was the benefit of the fence being erected and maintained;
• the dominant and servient land must not be owned or occupied by the same person;
• the easements must be capable of forming the subject-matter of a grant – as dealt with in Issue One the High Court confirmed that a fencing easement could do so.

On this basis the High Court found that on a true construction of the wording of the clause an easement to maintain the fence was created. The High Court placed emphasis on the obligation to maintain the fence “forever hereafter” for the benefit of the neighbouring land. This showed that the parties intended for the obligation to run with the land.

Conclusion

The High Court have expanded on previous decisions relating to fencing easements and how they can be established, confirming that they can be created by way of an express grant. This appears to create an exception to the established principle that a positive covenant would not bind successors in title without a chain of subsequent covenants being provided. Whether similar obligations to erect and maintain fences will also be found to be an easement will depend on the true construction of the clause.