Last month the High Court decided that express fencing obligations could be an easement that can bind successors in title.
An easement is a right benefiting a piece of land (called the dominant land) that is enjoyed over another piece of land owned by someone else (called the servient land). Easements are attached to the land rather than the person who happens to be the owner or occupier of the dominant land at any given moment. The most common example of easement is a right of way over a piece of land. The general view is that true easements do not impose an obligation on the owner of the servient land to spend money. An obligation to build and maintain a fence or hedge does involve an expenditure and for that reason, at first glance, one might think that fencing obligations cannot be regarded as true easement and, instead, they are closer in nature to a positive covenant which is only enforceable against the original parties (unless the subsequent owner enters into a separate deed of covenant).
In the past the courts have recognised that there could be a fencing easement by implication, for example, where over many years the servient owner has consistently responded to requests to repair a fence when asked to do so by the dominant owner. However, until the last month’s decision in Churston Golf Club v Haddock it was unclear whether it was possible to create an express fencing easement in a deed which would be enforceable against successors in title.
Mr Haddock, who was the tenant of a farm called Churston Court Farm, sought a declaration that Churston Golf Club, a golf club which occupied the neighbouring land, was obliged to fence the boundary between their respective parcels of land. Mr Haddock relied on a clause in a conveyance made between the former owners of the golf club. Mr Haddock’s landlord, as owner of the adjoining land, was also a party to that conveyance. The clause provided that the purchaser of the golf club land would maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences. At first instance the judge agreed with Mr Haddock and held that the conveyance did impose express fencing obligations on the golf club as successors in title to the golf club land. The club appealed. The issues before the High Court were complex and involved, amongst other things, a question which had puzzled many for a long time, namely whether it is possible to create an enforceable fencing easement in a deed. The issue was controversial as the general view had always been that real easements do not involve spending money. Having reviewed the key case law, the High Court recognised it had to be legally possible for a fencing easement to be granted expressly. However, whether a particular document creates a fencing easement must depend on its true construction. In this case, the court held that the words “forever hereafter” meant that the parties to the conveyance must have intended for the benefit to pass with the land rather than be merely personal in nature, and there was no legal reason for the court to fetter the intention of the parties. Mr Haddock was therefore successful again.
The key thing which persuaded the judge that this was a grant of easement which could run with the land, rather than a personal covenant, were the words “forever hereafter”. The case, however, should not be seen as supporting the
proposition that the law will now generally recognise easements that impose any other sort of positive obligations. All the case does is to recognise that it is possible to expressly create a fencing easement, the burden of which binds successors in title, especially if the document employs words which strongly indicate that the parties intended for that obligation to last into the future, even if the original purchaser ceased to exist. Again, one cannot emphasise enough the importance of careful drafting of legal documents.
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