To Be an Easement or Not to Be
The Court of Appeal recently decided in Churston Golf Club Ltd v Haddock (2019) that a fencing obligation in a conveyance was not an easement, but a positive covenant, and, as such, could not bind successors in title.
Mr Haddock brought proceedings against the tenant of Churston Golf Club, adjacent to his farm. He claimed there had been a breach of a covenant in a 1972 conveyance of the golf club land to: “maintain and forever after keep in good repair … stockproof boundary fences or hedges along such parts of the land … as are marked T inwards on the plan.”
The High Court agreed with Mr Haddock. The use of the express words to “forever after keep in good repair” created a fencing easement. This meant that it bound the golf club owners and benefited the adjoining farm, even though neither were party to the 1972 conveyance.
Fencing easements are an unusual type of right which have been described as a “spurious easement” because the technical requirements needed to create an easement are missing from the clause creating the right.
Had this decision stood, it would have been the first example of an express positive obligation in a conveyance creating a fencing easement. It would also have signalled an attempt by the courts to give effect to the original parties’ intentions, by characterising what was a positive covenant, as a fencing easement, which would not otherwise be enforceable as between successors in title to the original parties.
However, the golf club appealed, arguing that the obligation was simply a positive covenant to fence, not an easement, and as the 1972 conveyance did not require successors to the original parties to give an indemnity covenant, the obligation could not be enforced. The Court of Appeal agreed. The 1972 conveyance was professionally drafted and ought to be given its “conventional meaning”. There was no justification for construing the clause other than as a positive covenant to fence. This meant that the golf club, as a successor to one of the original parties to the 1972 conveyance, was not bound by the covenant and therefore was under no obligation to maintain the fence.
Consequently, it was unnecessary for the Court to decide whether, in principle, a fencing easement could be created by express grant.
A key message from the decision is that where a positive obligation is intended to bind successors in title, an appropriate mechanism must be included in the transfer. If appropriate wording (such as a chain of indemnity covenants) had existed in the transfer of the land to the golf club, perhaps Mr Haddock’s claim may have been successful.
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