0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Churston Golf Club v Haddock [2019] EWCA Civ 544

3 July 2019

Facts

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.

Issues

  1. Could the obligation in the 1972 conveyance be construed as a fencing easement (and therefore binding on successors in title to the servient land)?
  2. If so, was it possible to create such an easement by express grant?

Decision

  1. To construe the obligation in the 1972 conveyance as an easement (rather than as a covenant) would be at odds with the language and the composition of the conveyance (after all, the relevant clause expressly used the word “covenants”). The conveyance was drafted by a lawyer and the form and terminology adopted demonstrated that the draftsman understood the basic rules governing the creation of easements and the imposition of covenants.
  2. As a result of point 1 above, it was unnecessary to consider whether it is legally possible to create a fencing easement by express grant.

Points to note/consider

  1. The High Court decision was based on a trio of Court of Appeal decisions from the 1960s and 1970s which had held that the right to have a wall or fence kept in repair can constitute an easement, even though it offends the rule that an easement cannot impose a positive obligation on the owner of the servient land. In those cases, the alleged easements arose by prescription and there are no reported cases where such an easement has been upheld when expressly granted. As the Court of Appeal declined to express an opinion on the point, we still do not know if such an express grant is possible in appropriate circumstances.
  2. Given the language of the 1972 conveyance, it is unsurprising that the High Court decision has been overturned on appeal. All property lawyers would read the relevant obligation as a positive covenant and conclude that the burden is not capable of directly binding successors in title to the original covenantor. 

training and events

24Oct

Claims Club Manchester office

We will be discussing the Human Rights Act, school claims and a legal update on 'hot topics'.

View event

focus on...

Legal updates

Public matters - October 2019

This month includes government outsourcing, amending contracts, land registration 2025 target for public sector, inquests, and public procurement with SMEs, Brexit and the mafia.

View

Legal updates

Foster carers are not ‘workers’ according to the Employment Tribunal

For anyone who has followed the evolving case law in the social care sector, this title is likely to raise some questions. Most notably, “What about the decision in Armes?”

View

Brexit resources

More concerns on the horizon for social care services and private providers

In a survey conducted by Unison this summer more than half of our social workers say they are considering leaving the profession for a less stressful position.

View brexit resources

Upcoming webinars

Care Quality Commission and health & care regulatory update

Carl May-Smith will provide an update on CQC & Competitions & Markets Authority enforcement, a recent Tribunal decision on the registration of learning disability & autism services and the latest in CQC’s review of restraint, seclusion and segregation.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

David Harris

David Harris

Professional Development Lawyer

View profile

mailing list sign up



Select which mailings you would like to receive from us.

Sign up