According to the Court of Appeal in a trio of cases, Jones v Price [1965] 2 QB 618, Crow v Wood [1971] 1 QB 77 and Egerton v Harding [1975] 1 QB 62, the right to have a wall or fence kept in repair constitutes a right in the nature of an easement. And, as such, it is capable of running with, and of binding successors in title to, the servient land – even though is generally accepted that the owner of land subject to a legal easement should not be required to take any positive action, or to bear any expenditure as a result.
Gale on Easements has described the right to have a fence or wall kept in repair as a “spurious kind of easement”. And some critics have suggested that easements of fencing are confined to cases involving animal husbandry. It has also been suggested they arise through prescription, as opposed to being created by positive obligations, because positive obligations are personal to the parties and do not run with the covenantor’s land: Austerberry v Corporation of Oldham (1885) 29 Ch D 750.
Churston Golf Club v Haddock [2019] EWCA Civ 544; [2019] PLSCS 64 concerned a golf course situated on land adjoining a farm. Was the golf club bound by an obligation imposed in a 1972 conveyance, to which it was not a party, to fence the boundary between the golf course and the farm? The farmer claimed that the golf club was bound by the positive obligation because it took effect as a fencing easement, which ran with the land. But the golf club argued that easements of fencing arise from prescription, or through custom, because it is impossible to create fencing easements expressly without falling foul of the rule in Austerberry.
However, the judge in the High Court decided that it was possible to create an easement of fencing by an express grant in a conveyance. Furthermore, the fact that parties had expressed the obligation in the form of a “covenant” did not prevent a clause from taking effect as an easement.
The Court of Appeal took a different view. It noted that it was bound by the decision in Crow v Wood – and chose to sidestep the point raised by the golf club. Lord Justice Patten, who spoke for the court, explained that it was unnecessary to consider whether it is legally possible to create a fencing easement by express grant because to construe the obligation in the 1972 conveyance as an easement, as opposed to a covenant, would be at odds with the language and composition of the conveyance.
The conveyance was drafted by a lawyer. The form and terminology adopted demonstrated that the draftsman understood the basic rules governing the creation of easements and the imposition of covenants. And recent decisions of the Supreme Court, in cases such as Arnold v Britton [2015] AC 1619, confirm that the words used in professionally drawn documents will normally be given their conventional meaning. Consequently, there was no justification for construing the obligation as anything other than a positive covenant, which did not bind the golf club because it was not a covenantor.
Conveyancers will welcome the decision. But the question of whether it is possible to create an easement of fencing by express grant has lived to fight another day. What a pity that the Court of Appeal felt unable to rule out the possibility once and for all.
Allyson Colby, property law consultant
