The Court of Appeal has reinstated conventional wisdom by ruling that a standard fencing covenant should not be treated as a fencing easement.
A conveyance in 1972 contained a ‘covenant’ by the buyer in favour of the owners of adjoining land as follows:
“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 stock proof 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 current tenant of the adjoining land looked to enforce this obligation against the current tenant of the land conveyed in 1972 (i.e. not the original covenantor) on the basis that the obligation was a fencing easement (and so ran with the land). To the surprise of most people, this argument was successful in the High Court.