Churston Golf Club v Haddock [2018] EWHC 347 (Ch)
Mr Haddock is a tenant farmer and neighbour to Churston Golf Club (the “Golf Club”). This was a dispute about an obligation to fence the boundary between their land. In simple terms Mr Haddock argued that the Golf Club was required to fence the boundary because in the relevant conveyance dating from 1972 there was a clause saying:
‘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.’
Mr Haddock is the successor in title to the Trustees, and the ‘Purchaser’ was the former owner of the Golf Club.
At first instance, the judge held that the above clause created a fencing easement and, as such, the Golf Club was required to fence the boundary with Mr Haddock’s land. However, the Golf Club appealed that decision and in February this year it was heard by Mr Justice Birss in the High Court.
The appeal turned on the questions of: i) whether it is legally possible for a clause in a conveyance to create a fencing easement at all; and ii) whether on its true construction the clause has that effect.
On the first question, Mr Justice Birss held that it is legally possible for a clause in a conveyance to create a fencing easement. Historic case law has established that fencing easements can be created by grant and so it must be possible to create a fencing easement by express grant. He said ‘…since a fencing easement is a thing which can exist, can run with the land and whose origin can lie in grant, I cannot imagine why two parties who wish one to be granted cannot do so.’
As regards the second question, he held that this clause does have the effect of creating a fencing easement in large part because the obligation in the conveyance was to ‘maintain and forever hereafter keep in good repair…’, which in his opinion indicated that the parties intended that the obligation was supposed to last into the future even if the purchaser ceased to exist. As such it supported the argument that this was the grant of an easement.
The results of his findings were that a fencing easement was created by the wording in the 1972 conveyance and the Golf Club were bound by it. The appeal was dismissed.