What is the difference between a positive covenant and a fencing easement?

Jody Proudman of Harrison Drury’s property litigation team, outlines the distinction between a positive covenant and an easement, and the subsequent obligations to boundary management for land owners.

Accurate analysis to determine the nature of an obligation in land can be challenging. This is particularly so when faced with a term which could constitute either a positive covenant or a ‘fencing easement’ (which is an obligation to incur the cost of maintaining boundary fencing).

The crucial distinction between a positive covenant and an easement is that positive covenants generally do not bind successors in title whereas easements do. This is with exception where there is a chain of indemnity – in other words, each successive owner has agreed to bear liability for the covenant thus creating an enforceable ‘chain’.

If a person purchases land with the burden of a positive covenant, they will generally not be obliged to comply with it. However, if the land is burdened by an easement this obligation can pass on to the purchaser.

The case of Churston Golf Club Limited v. Richard Haddock

The Court of Appeal tackled this very issue in the case of Churston Golf Club Limited v. Richard Haddock [2019] EWCA Civ 544.

Churston Golf Club Limited (‘the Golf Club’) owned land subject to the obligation in a historic transfer of the land in 1972 which required the owner to erect and maintain a substantial stock-proof fence, wall or hedge along the boundary between its property and that of Mr Haddock.

The court had to decide whether this obligation was a covenant, or the creation of an easement of fencing in favour of Mr Haddock’s property as the dominant land.

Mr Haddock alleged that his farming operations had been adversely affected by the Golf Club’s failure to maintain an effective fence or hedge along the boundary between their properties. Mr Haddock sought a declaration that the Golf Club was liable to erect and maintain such a fence or hedge and damages for the loss of use of his land as pasture for cattle.

The importance of careful drafting of covenants

In the circumstances, the court found that there was no justification for construing the obligation as anything else but a covenant and to do otherwise would be at odds with the wording of the obligation.

Therefore, as the covenant is positive, it does not run with the land to bind the Golf Club as a successor in title in the absence of a chain of indemnities.

It is reassuring that the court will construe covenants as such if that is how they are expressed.

Careful drafting of any covenant is therefore crucial to ensure that they reflect the parties’ intentions.

If you require assistance regarding a property dispute, or to seek specialist legal advice from Harrison Drury’s property litigation team, please contact Jody Proudman on 01772 258321.