Fence and Fencibility - Can you be forced to construct or repair fencing?
An obligation to construct or maintain a fence on the boundary with neighbouring land is an anomalous issue at law. The obligation is a 'positive' one and arguably not enforceable once the land has changed ownership. The recent High Court decision in Churston Golf Club v Haddock (2018) has provided a clear, if questionable, development in this area.
Background - easements, covenants and fences
An easement is a right over one piece of land for the benefit of another piece of land. Common examples include rights of way and rights to light. An easement will automatically bind subsequent owners of the 'burdened' land.
By contrast, agreements that create positive obligations will not usually bind successors in title, and they are normally directly enforceable only against the original covenantor.
Generally, an easement cannot require the owner of the affected land to spend money or actively do a thing - for example, to repair a road or dig a trench.
So far, so good for the affected landowner. But one unusual exception to this rule is an obligation to maintain a boundary fence. In the past, the courts have, through some contortions of legal logic, held that such obligations can be 'quasi-easements', arising through a course of dealing between neighbours over a period of at least 20 years. These 'fencing easements' therefore bind successors in title, although it has not previously been possible to grant a fencing easement without the 20-year wait.
The High Court decision in Churston Golf Club
A recent case changes that. A farmer claimed against a neighbouring golf club, arguing that the club had breached its express obligation to maintain the boundary fence between their two properties.
The obligation was contained in a transfer from 1972 made between previous owners, and was expressed as a covenant, stating that the proprietor of the golf club and its successors in title would 'maintain and forever hereafter keep in good repair' the boundary fences, walls and hedges. The court at first instance found that the phrase 'forever hereafter' showed a clear intention that the obligation should survive changes in ownership of the golf club land and that the right was, in its proper construction, a fencing easement. On appeal, the High Court supported this interpretation.
The outcome of the judgment is that, for the first time, there is case law to support a process of creating, by deed, positive fencing obligations that bind successors in title. However, this should be approached with circumspection. Fencing easements are a legal oddity - the positive obligations they impose would ordinarily prevent them from being classed as easements at all.
Simply inserting forcefully worded covenants into transfer deeds is no guarantee of creation of a fencing easement. Whilst the decision in Churston Golf Club indicates that such covenants can be created by deed, there is likely to be further legal argument about the nature of the wording required to do so. It is also not inconceivable that the decision could be overturned by a future ruling in the higher courts.
April 2018 - As predicted, the decision has been over-ruled by the Court of Appeal who decided that a fencing easement was not created by this transfer deed and that a covenant to maintain a fence is only directly enforceable against the original contracting party.