A golf club in Devon has won a lawsuit brought against it by a farmer who claimed the club was obliged to maintain a fence between their properties.
The case, in which the Court of Appeal gave judgment this week, centres on whether a clause in a conveyancing contract is a covenant or an easement.
And, according to the judges hearing it, it has the potential to be of real legal importance, as the court may need to decide whether an easement can be created “by express grant”, a question that has not yet been considered by Court of Appeal judges.
Richard Haddock, the farmer-tenant of Churston Court Farm, is bringing the claim against Churston Golf Club. He’s been the tenant since 2002.
The golf club is the tenant and registered proprietor of its land under a lease for a term of 999 years granted by the local council in 2003.
Haddock issued proceedings in 2015 alleging that his farming operations had been adversely affected by their failure to maintain an effective fence or hedge along the boundary between the two parcels of land. He points to a clause in a 1972 conveyancing between previous owners of the land that states:
“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 stockproof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto.”
An “easement” is a right over land that is not personal, and therefore can survive changes in ownership. A covenant binds two or more parties to an agreement, and does not impose on future parties.
Easements, according to the ruling, are usually negative in nature and do not impose obligations of repair.
The judges found that, when the clause was written in 1972, the solicitors drafting it would have been aware of this and construing the clause as anything more than a covenant would be wrong.
Therefore, they found that the clause only bound the 1972 parties. They rejected the farmer’s case.
As they ruled that the clause was not intended to be an easement, they did not need to consider the broader issue of whether an easement can be made by express grant.
Churston Golf Club Ltd v Richard Haddock
Court of Appeal (Lord Justice Patten Lord Justice Baker and Mr Justice Nugee) 3 April 2019.
Ms Joanne Wicks and Mr Malcolm Warner (instructed by Kitsons LLP) for the appellant, Churston Golf Club
Mr Leslie Blohm QC and Mr John Sharples (instructed by Stephens Scown LLP) for the respondent, Richard Haddock
Hearing dates: 13-14 February 2019
