Can an obligation to maintain fencing operate as an easement?

In the case of Churston Golf Club v Haddock, the High Court needed to consider whether an obligation in a conveyance to maintain fencing along a boundary took effect as an easement.

There are two possible ways to interpret a fencing obligation: (a) as an easement, or (b) as a positive covenant. The distinction is important as:

• Easements “run with the land” (i.e. pass from owner to owner) automatically; and
• Positive covenants (the common form) only run with the land if a new owner agrees to take on the burden of maintenance, usually via a deed of covenant.

Mr Haddock, the tenant of a nearby farm, and the Golf Club have a lease of the neighbouring land (“Golf Club Land”). A conveyance of the Golf Club Land in 1972 contained the fairly standard covenant that the purchaser would:

“maintain and forever after keep in good repair….stock proof boundary fences walls or hedges along such parts of the land…as are marked T inwards on the plan….”.

Fencing easements impose a positive obligation on the servient owner and this characteristic is not consistent with a true easement. However, the High Court concluded that, as previous decisions in Crow v Wood [1971] and Egerton v Harding [1975] had relied on the doctrine of lost modern grant (i.e. the right had been created not expressly in a deed but by historic long use), the express grant of a fencing easement had to be legally possible.

Whether a clause creates a fencing easement or a simple positive covenant will depend on how it is drafted. In this case, the High Court decided the obligation was intended to apply indefinitely and therefore created a fencing easement. Consequently, the burden had passed to the Golf Club in spite of the intention.

This decision is the new example of an express obligation in a conveyance being held to create a fully-fledged fencing easement and serves as a reminder that the courts will try to interpret deeds in a way which they consider consistent with the original parties’ intentions, not necessarily the intention of the parties at the time of the transaction in question. The concept of a fencing easement that binds future owners is unusual but future cases may reveal the existence of more and more.

Sam Read is a solicitor in the property department at Barker Gotelee Solicitors in Suffolk.

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