Housing associations own and develop substantial pieces of land. They want to keep trespassers out, and protect their residents and occupiers. However, fencing off land costs money, and it is not uncommon for adjoining property owners to dispute who is responsible for the ongoing costs of maintaining and repairing fences on boundaries. These disputes can increase in complexity where the relevant obligations were created some time ago and where the land ownership has changed hands.

A recent case involved just such a dispute, and the decision of the court depended in part on whether the particular obligation was an ‘easement’ or a ‘covenant’.

What is an easement?

An easement is a right over one property that benefits another property (i.e. a right of way or a right to use a sewer).  An easement can normally be enjoyed by subsequent owners or occupiers.

What is a covenant?

A covenant is a legal promise to do or not to do something.  There are two types of covenant: those which are positive in nature and those which are negative (restrictive) in nature.  A positive covenant usually involves spending money or promising to do something and cannot automatically be enforced against subsequent owners or occupiers.  A restrictive covenant is usually one which restricts the use of the land and would automatically pass to the subsequent owners or occupiers.

Fencing

A fencing easement is one that grants a right to have a fence or wall kept in repair.  The ruling in the historic case of Austerberry meant that it was impossible to grant a fencing easement and it could only be created expressly by means of a covenant.  As explained above, a positive covenant cannot achieve the same result as an easement because it cannot be enforced against subsequent owners or occupiers.

Churston Golf Club v Haddock

The recent decision in Churston Golf Club v Haddock [2018] is the first where an express obligation was held to create a fencing easement. 

In the case of Churston, the issue was whether a fencing easement could be created or granted expressly. The facts of this case were that Mr Haddock (who was the tenant of a farm called Churston Court Farm) sought a declaration that the owner of the neighbouring land, was obliged to fence the boundary between the respective parcels of land. In doing so, Mr Haddock relied on a clause in a conveyance between the former owners of the golf club, to which Mr Haddock was also a party. The conveyance from 1972 contained the following clause:

“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.”

On an initial read this clause appears to contain a positive covenant particularly as the clause starts with “the purchaser hereby covenants”.  The law is clear that positive covenants do not bind their subsequent owners or tenants. If however, this clause could be construed as an easement it was capable of binding subsequent owners and their tenants. 

The general view had always been that easements could not involve expenditure (e.g. repair a road). Therefore, an obligation to build and maintain a fence or hedge would involve expenditure and so may not be regarded as an easement. Instead the obligation was considered closer towards being a positive covenant which does not bind subsequent owners or occupiers. 

Despite this the High Court recognised that it had to be possible for a fencing easement to be granted expressly and the exception to the rule of non-expenditure was an obligation to maintain a boundary fence. The key considerations that led to the High Court’s decision were:

1. Is this capable of binding the land and subsequent owners? The words “forever hereafter” were indicative that this clause was intended to run with the land and not just to bind the original parties as would a personal covenant or positive covenant. This clearly demonstrated that the parties had intended for the fencing obligation to continue into the future even where the original parties were no longer around.
2. Even though the word “covenant” was used in this clause, this was not sufficient to demonstrate that this clause was not capable of being an easement.

 

Application

What this means for the future is that housing associations should be very careful in considering the fencing obligation that they are about to enter into or grant since it may be construed as an easement rather than a positive covenant and therefore will be enforced against subsequent owners or occupiers. 

However, where housing associations are disposing of properties, particularly dwellings on a housing estate, they will want to ensure such fencing obligations can be enforced against not only the homeowners, but their successors. 

This case demonstrates the importance of careful drafting so that an easement is not inadvertently created. The key words here were “forever hereafter” which indicated that irrespective of whether the clause referred to the word “covenant” there was always an intention for this clause to bind subsequent owners or occupiers. The judge held that it was clear this clause could be construed as an easement even though it was framed as a covenant and even though the word “covenant” was referred to.

This case should not be considered a “get out” to avoid positive obligations not binding its subsequent owners or occupiers, and the rule in this case should just be confined to fencing or boundary easements.

When conducting a review of the title documents, you/your solicitor should be careful not to disregard a positive covenant if no chain of indemnity has been created.  On a closer inspection, it may be that the positive covenant could in fact be interpreted as an easement.  If you are the owner of the land that has the benefit of such an easement, then it may be a good thing that the maintenance and repair of a fence or other boundary structure is not your lookout.  However, if you own or are about to own land which has the burden of such an easement, you may want to consider the implications of this.  For example, if a positive covenant (which could be construed as an easement) refers to maintaining a brick wall which is now in disrepair, the costs in maintaining/repair such a brick wall may be significant in comparison to a wooden fence.