An easement or what?

Land in Churston, Devon was sold to a golf club.  The retained land (owned by trustees) was used for agricultural use.  The golf club covenanted in clause 2 of the conveyance 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 stockproof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”.

As between the original parties to the conveyance, the Trustees could enforce the above clause against the Purchaser.  But what happens if the gold club sells its interest?  Is the new purchaser also bound by the clause?  A judge at first instance said ‘yes’ because clause 2 was not a mere covenant – it was in fact an easement.  In any event, he held that the burden of clause 2 would pass to the new owner of the golf club pursuant to s79 of the Law of Property Act, 1925.  On appeal, the High Court said the juudge at first instance was wrong re s79 due to the earlier decision of the House of Lords in Rhone v Stephens [1994] 2 AC 310 (which held only negative covenants could bind successors in title).  Therefore, if a simple covenant, the answer would be ‘no’ (a problem which the Court of Appeal said would be evident to any conveyancing solicitor and could be overcome by a chain of indemnity covenants).  However, the High Court agreed with the judge at first instance and held that clause 2 was not a simple covenant but was in fact an easement.  As such it would bind the new purchaser.

The golf club under its new ownership appealed to the Court of Appeal (Churston Golf Club Limited v Richard Haddock [2019] EWCA Civ 544).  Was clause 2 a simple positive covenant to fence or was it an easement for the benefit of the retained land?  And if the latter, could a fencing easement be created by express grant as opposed to custom or prescription?

The Court of Appeal held clause 2 was nothing more than a covenant to fence – it did not amount to an easement.  In those circumstances, the court said it was unnecessary to consider whether it is possible to create a fencing easement by express grant.  The question remains open.

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