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Fencing

Obligation to create fencing

Creation by express grant in a Conveyance

Churston Golf Club v Haddock
[2018] EWHC 347 (HC)

Summary

It is possible for a fencing easement to be created by express grant in a Conveyance.

Facts

Relying on a clause in a 1972 conveyance of the claimant’s land, the defendant sought a declaration that the claimant was obliged to fence the boundary between the parcels of land. The covenant in the 1972 conveyance required the purchaser to:

"maintain and forever after keep in good repair…. stock proof boundary fences walls or hedges along such parts of the land…as are marked T inwards on the plan….".

Issues
  • Whether it is legally possible for a clause in a conveyance to create a fencing easement; and
  • Whether the clause in question had that effect?
First instance

The trial judge agreed that the clause created a fencing easement and that the burden of the easement had passed to the claimant golf club. The golf club appealed against this judgment.

Decision on appeal

The appeal was rejected. The court noted that easements generally do not give the owner of the dominant tenement a right to impose a positive obligation on the owner of the servient tenement to do something (such as to spend money). However, it found that it was clearly established by case-law in the 1960s and 1970s that a fencing obligation between neighbours in the nature of an easement can exist as a matter of English law and will run with the land. The court found that fencing obligations can be created through express grant and that the conveyance in this case had created such an easement.

Comment

This decision is the first example of an express obligation in a conveyance being held to create a fencing easement.

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