We lawyers often come across fencing covenants in transfer deeds and conveyances, both old and modern. They usually provide that one party promised to maintain a particular fence or, where a parcel of land has been sold off, one or other of the parties promised to erect a fence and then maintain it in the future. The relevant boundary is usually denoted on the plan attached to the document.
We often advise clients that the covenant is likely to be unenforceable against a future owner because it is a positive covenant, in other words it requires a person to take action and incur expense. Positive covenants do not “run with the land” so they do not burden it and the covenants are purely personal between the parties at the time – this is the so called rule in Austerberry.
However, in a decision on 23 February 2018, the High Court decided that a fencing obligation, which looked as if it was a straightforward covenant to fence, created a fencing easement instead.
The case concerned a dispute between two adjoining land owners about an obligation to maintain a boundary fence separating their respective properties. A Mr Haddock was the claimant and he required his neighbour to maintain the fence. The neighbour claimed that the obligation was a fencing covenant and, as such, was a positive covenant, and that as he was a successor in title, the covenant did not burden his land and thus he was under no such obligation.
The wording of the covenant (in a 1972 conveyance) was as follows:
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.
The court decided that it was possible for a clause in a conveyance to create a fencing easement if on an objective view, this was what the parties intended to achieve. The key words that persuaded the court that the clause in the conveyance amounted to the grant of an easement rather than a covenant, was the use of the words “forever hereafter”. The court said that these words showed that the parties intended the obligation to last into the future and bind a successor in title.
The fact that the clause used the word “covenant” did not mean that it necessarily only created a covenant – it could also take effect as the grant of a fencing easement. The court went on to say that because of this, the rule in Austerberry was not relevant. The court confirmed that the four requirements to create an easement were present, namely:
- There must be a dominant and servient tenement – in other words there must be land that benefits and land that is burdened;
- The easement must confer a benefit on the benefitting land;
- The benefitted and burdened land must not be owned or occupied by the same person; and
- The easement must be capable of forming the subject matter of a grant (the Court of Appeal decided back in the 1960s and 1970s that a fencing obligation between neighbours could exist as an easement as a matter of English law and run with the land).
I am not convinced that the High Court got this decision right. For a start, the clause is clearly worded as a mere covenant – “the purchaser hereby covenants”!
Secondly, if the parties had intended to create an easement, the drafting lawyer would have used the established wording for an easement. This attaches the benefit and burden of the easement to the respective parcels of land. This was not done.
Thirdly, the words to maintain a fence “forever hereafter” could be interpreted as a personal covenant by the original purchaser that he would ensure that any purchaser from him would forever thereafter maintain the fence. This would mean that the original purchaser would be liable under his positive covenant for the failure by his successors in title to maintain the fence.
All in all I am still inclined towards a natural interpretation of the clause – but in future I will have to warn clients that there is the possibility that such a fencing covenant could be interpreted as an easement!
This is not legal advice; it is intended to provide information of general interest about current legal issues.