Churston Golf Club Ltd v Haddock

Conveyance – Easement – Fencing – Dispute arising about obligation to fence boundary between two parcels of land – Judge holding appellant liable to fence boundary by putting fence on their land – Judge identifying obligation as fencing easement – Whether conveyance creating easement of fencing in favour of respondent’s property as dominant tenement – Whether possible to create fencing easement by express grant – Appeal allowed The respondent was the tenant under a lease of Churston Court Farm. The freehold of the farm was registered in the names of the trustees of a settlement. The appellant was a golf club which was the leasehold proprietor of neighbouring land. The freehold of the appellant’s land was held by Torbay Borough Council. In 1972 the former owners of the appellant sold the golf club land to the council by a deed of conveyance. The trustees, who were owners of adjoining land, were also parties to the deed. Clause 2 of the conveyance provided: “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 …”. The respondent was a successor in title to the trustees named in the clause and the benefit of clause 2 passed to him. A dispute arose about the obligation to fence the boundary between the two parcels of land. The judge held that the appellant owed an obligation as the owner of adjoining land to fence the boundary by putting a fence on their land. He identified the obligation as a fencing easement. The High Court dismissed an appeal against that decision: [2018] EWHC 347 (Ch); [2018] PLSCS 39. The appellant appealed. The issues for determination were: (i) whether clause 2 of the conveyance fell to be construed as the creation of an easement of fencing in favour of the respondent’s property as the dominant tenement; and (ii) if so, whether it was possible to create such an easement by express grant. Held: The appeal was allowed. (1) An easement was a right over land in separate ownership which was appurtenant to the land of the dominant owner. As such, it had to accommodate the dominant tenement and be capable of forming the subject matter of a grant. Easements, properly so-called, did not ordinarily impose obligations to repair on the servient owner. Even where the easement was positive in nature, such as a right of way, the servient owner was not required to keep the road or other land over which the right was exercisable in good repair. If he chose to carry out repairs, he would have no legal right to recover a contribution from the owner of the dominant tenement absent an agreement to that effect. There were instances in which an obligation to repair might arise either from custom or by statute and so-called fencing easements were no more than instances where the law would impose on the owner of land an obligation to keep his land fenced for the benefit of the owners or users of the adjoining land. Such an obligation was not an easement in the usual sense. It imposed an obligation on the servient owner which the owner of the dominant tenement might enforce for his benefit qua owner and which the owner of the servient tenement came under as an incident of his ownership of that land: Re Ellenborough Park [1956] 1 Ch 131 and Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; [2018] 1 WLR 1630 considered. (2) A standard form of fencing covenant should not be treated as an anomalous fencing easement, capable of binding successors in title. The terms of the covenant in this case were neither unusual nor sufficient in themselves to convert what was expressed to be a covenant into some form of easement. Had that been the draftsman’s intention one would have expected in a carefully drafted conveyance of this kind to see the easement included in terms as an express grant of such a right by way of exception to the land conveyed to the council. Clause 2 was framed in the language of a covenant and had to be treated as one. Russell v Watts (1885) 10 App Cas 590, Austerberry v Oldham Corporation (1885) 29 Ch D 750, Crow v Wood [1971] 1 QB 77, Egerton v Harding [1975] 1 QB 62 and Rhone v Stephens [1994] 2 AC 310 considered. (3) The parties to the 1972 conveyance entered into a conveyance of the appellant’s land which included covenants to fence. They did so against a background of settled law that only negative covenants could bind successors in title and that fencing covenants were therefore enforceable only as against the original contracting parties. There was no justification for construing clause 2 as anything else but a covenant. To do otherwise would be at odds with both the language and the composition of the conveyance. Even with the benefit of section 79 of the 1925 Act, emphasising the intention of the parties that the effect of the covenant should endure beyond the original parties to the deed, clause 2 could not overcome the obvious objections to it being construed otherwise than in accordance with the language which the parties used. Section 79 should not be treated as converting a positive covenant to fence into an easement in order to give some effect to the incorporation of a reference to the covenantor’s successors in title. Furthermore, the other features of clause 2 amounted to the expression of a contrary intention which would exclude the addition of the section 79 formula. (3) In the circumstances, it was not necessary to deal further with the question whether it was possible to create a fencing easement by express grant. In any event, the court was bound by the decision in Crow v Wood, where Lord Denning MR expressed the view that an easement of fencing could be created by a grant under section 62 of the Law of Property Act 1925. Any further consideration of the issue was best reserved to a case in which the point was essential to the outcome of the appeal. Joanne Wicks QC and Malcolm Warner (instructed by Kitsons LLP, of Torquay) appeared for the appellant; Leslie Blohm QC and John Sharples (instructed by Stephens Scown LLP, of Exeter) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Churston Golf Club Ltd v Haddock