Partner Katja Wigham, head of our Commercial Property team, outlines landowners' fencing obligations and what they can do to protect their position following a recent case.
The Court of Appeal recently overturned the decision in the case of Churchstone Golf Club v Haddock and ruled that an obligation to fence contained in a 1972 conveyance, was not an easement (a right over another person’s land), but simply a covenant (an obligation) to fence. This meant that the obligation was unenforceable as positive covenants do not run with the land.
What is a positive covenant?
The fencing covenant in this case was a promise to erect and maintain a fence. As the covenant required positive action by one party, it is known as a positive covenant.
However, under Common Law and Equity positive covenants do not run with the land. This means that successors in title (future owners) will not be bound by the original covenant made between the original parties, making the positive covenant unenforceable against successors in title. Therefore if the fence falls into disrepair it may be impossible for the party benefitting from the covenant to force the repair.
If positive covenants do not run with the land, is there anything I can do to protect my position and ensure the obligation to fence is enforceable?
There is. You can include in the transfer an obligation on the buyer to ensure that if they sell, their buyer enters into an agreement (known as a deed of covenant) with you under which they agree to be bound by the positive covenant. You would also require in the transfer that on completion of registration of the sale to the buyer, the Land Registry will enter a restriction on the new title, preventing any future registrations on sale, unless any new buyer provides the deed of covenant. This means that new future buyers are bound by the obligation to maintain the fence.
A further document could mean more cost, so is this necessary?
Ultimately, it depends on the circumstances and each case should be assessed individually. A common example is where you use your land for agricultural purposes such as farming, and wanted to sell off some land to a developer. In this instance, you would want to ensure that the fence is maintained to prevent any livestock from escaping. For that reason, by making a future buyer enter into a formal deed of covenant and ensuring the restriction is entered on the buyer’s title, this will help to ensure that the obligation to maintain is enforceable against future owners.
What else can this apply to?
The principle also applies to other positive covenants including obligations to pay money on the happening of a certain event (e.g. overage). Care should therefore be taken when drafting positive covenants and early legal advice is essential.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
