Fencing Easements: The Legal Obligation for Neighbors, Exams of Law

Download Fencing Easements: The Legal Obligation for Neighbors and more Exams Law in PDF only on Docsity! Neutral Citation Number: [2018] EWHC 347 (Ch) Case No: B00TQ111 IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS IN BRISTOL APPEALS (ChD) ON APPEAL FROM HHJ CARR sitting in the COUNTY COURT AT TORQUAY & NEWTON ABBOT Bristol Civil Justice Centre 2 Redcliff Street Bristol BS1 6GR Date: 23/02/2018 Before : THE HON. MR JUSTICE BIRSS - - - - - - - - - - - - - - - - - - - - - Between : CHURSTON GOLF CLUB Appellant - and - RICHARD HADDOCK Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Malcolm Warner (instructed by Kitsons) for the Appellant John Sharples (instructed by Stephens Scown) for the Respondent Hearing dates: 15th Feb 2018 - - - - - - - - - - - - - - - - - - - - - Judgment ApprovedMr Justice Birss : 1. This is an appeal from the judgment of HHJ Carr given in the County Court at Torquay and Newton Abbott on Thursday 8th December 2017. The claimant Mr Haddock is the tenant under a lease of Churston Court Farm. The freehold of the farm is registered in the names of the Trustees of the Churston Barony Settlement (the Trustees). The defendant is a golf club which is the leasehold proprietor of neighbouring land. The freehold of the Golf Club’s land is held by Torbay Borough Council. 2. The dispute is about an obligation to fence the boundary between the two parcels of land. The judge held that Golf Club owed an obligation as the owner of adjoining land to fence the boundary by putting a fence on their land. He identified the obligation as a fencing easement which arose in the following way. 3. In 1972 the former owners of the club (which was a company with a similar name to the defendant but no relationship with the defendant) sold the golf club land to the Aldermen and Burgesses of the County Borough of Torbay. The conveyance was by a deed dated 20th Dec 1972. The Trustees, who were owners of adjoining land, were also parties to the deed. Another party to the deed was a company but nothing turns on that. 4. The conveyance contains a clause, clause 2, which the judge held created a fencing easement. The clause is 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 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” 5. Mr Haddock is a successor in title to the Trustees named in the clause. Shortly before trial Mr Haddock took an assignment of that benefit from the Trustees and the judge allowed a consequential amendment to the Statement of Case. As a result there is no issue about the benefit of clause 2 passing to Mr Haddock on any view. 6. Torbay Borough Council replaced the County Borough as a result of local government reorganisation in the 1970s and today the defendant Golf Club is a tenant of the Borough Council. 7. The judge held that the burden of that easement passed on to the defendant. The judge therefore found for Mr Haddock. 8. The proceedings involved the Borough Council at one stage but they settled with Mr Haddock and so the Borough Council no longer play any part. There were also other issues the judge had to deal with as between Mr Haddock and the Golf Club but no appeal is brought in relation to those. 9. The Golf Club appeals. The judge refused permission but it was granted by Dingemans J. The appeal was heard in Exeter. This judgment was handed down in Bristol. 10. There are two issues (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. 11. The appellant contends that the answers to these points are (i) no, it is not legally possible and (ii) in any case even if it is possible, this clause– which is on its face a covenant not a grant - has not done so. The respondent disagrees, supporting the judge. 12. On one view the issues are some legal complexity and involve questions which have vexed real property lawyers for a long time. 22. On the other hand a textbook by Scammell in 1996 proposes a form of express clause for a conveyance which, the author suggests, could create a fencing easement. Since his easement clause is untested, Scammell also advises putting in a covenant just in case. 23. So Mr Warner’s case is essentially that while fencing easements are possible, they can only be established by prescription and other approaches based on long user. They cannot be created by express grant. 24. In my judgment that is wrong. The trio of Court of Appeal decisions makes it clear that the origin of the fencing easement lies in grant (or at least that is one origin). That is a necessary part of the reasoning which leads to the courts accepting that these obligations exist at all. Given that, then it seems to me that it must be possible for two parties to actually create such a right by grant in a conveyance, in other words in a clause in a conveyance of the relevant land. That does not mean such an easement has in fact been created in any given case but if, on its true construction, a clause purports to create an easement of fencing, in other words the objective view of the intention of the parties is that that is what they intended to achieve, I cannot see any good reason in law or principle why that should be declared legally impossible. Since clauses in conveyances can grant other sorts of easement, there is no reason why they cannot create this sort of easement. To hold that this is the law does not mean any attempt to create an easement which imposes any other sort of positive obligation is now possible. Far from it. That wider sort of positive obligation easement has not been recognised by the courts. But 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. 25. This is not the same as the situation in Rhone v Stephens [1994] 2 AC 310. In that case the House of Lords held that s79 of the Law of Property Act 1979, which is essentially a word saving provision making it unnecessary to refer to successors in title, had not reversed Austerberry and did not convert a positive covenant to maintain a roof into an easement which ran with the land. However crucially in my judgment, the House of Lords were not concerned in that case with a fencing easement – that is to say with a positive obligation which the law had by then already recognised could run with the land. The issue in Rhone v Stephens was whether s79 could in effect turn any positive covenant into a new kind of positive easement. The answer was no. Jones v Price is referred to and so their Lordships will have been well aware that that the case stood for the proposition that a fencing obligation could run with land. They did not contradict it. The reference picks up part of the judgment of Willmer LJ in which he noted that Austerberry prevents a positive covenant running with land. 26. It is clear law (and counsel for the appellant did not dispute) that clauses in a deed which conveys property can be construed as a grant of an easement even though they are framed expressly in terms as a covenant and even though the word “covenant” is used (see e.g. Rowbotham v Wilson [1843-60] All ER Rep 601, 603, and Russell v Watts (1885) 10 App Cas 590). Therefore the fact that a clause uses the word “covenant” does not mean it only takes effect as a covenant and cannot do so as a grant. Moreover, as explained by Diplock LJ in Jones v Price, the decision in Austerberry is concerned with the inability of provisions which are covenants as distinct from grants, to run with the land. Diplock LJ specifically drew the distinction between a grant and a covenant when he distinguished Austerberry. His judgment was that something which is a grant does not fall foul of Austerberry. It seems to me therefore that it follows that in a case in which the provision is construed as a grant, Austerberry is irrelevant. 27. Putting it another way, I respectfully disagree with the footnote in Megarry. It seems to me that once the step has been taken, as it was by Dipock LJ, to distinguish grants and covenants for the purposes of the application of Austerberry, then it necessarily follows that a clause which is construed as a grant does not engage Austerberry at all and there is no conceptual difficulty about drafting a clause which makes clear the parties intend the effect to be to grant an easement. No doubt it is simplistic but one might suggest putting the intention beyond doubt by using the word “easement” (as Mr Scammell did, and in saying this I recognise the actual clause in this case does not do that). 28. I find that the judge was entitled to examine whether the clause did create an easement of fencing because, as a matter of law, it is possible for a clause in a conveyance to do that. I reject the first point. The second point 29. The second question is whether clause 2 in fact creates a fencing easement. 30. The judge dealt with this in paragraph 46-49. He said: “46. The covenant in this case creates a fencing easement, and indeed a fencing easement can only be created by such a covenant. This is again supported by Megarry & Wade in the passage already cited, and in Russell v Watts [1883] 25 ChD 559. Sugarman v Porter [2006] EWHC 331 (Ch) does no more than seek to construe the wording of a particular covenant, and is not a proposition for the idea that a covenant cannot create an easement. 47. As was made clear in Scamell: Land Covenants and Rowbotham v Wilson [1860] EngR 892, one has to look at the wording of the 1972 covenant. The wording could not be clearer, nor could the intentions to bind successors in title be more apparent. The burden therefore passes, if in no other way, under section 79 of the Law of Property Act 1925. 48. Were the defendant’s arguments right – namely that the claimant’s only course of action is against the Council – this would fly in the face of the wording and the intention of the 1972 conveyance, which could be circumvented by the land being sold or by the Council ceasing to exist, for example as a result of local authority changes. The wording of the 1972 conveyance, ‘forever hereafter’ would be without meaning. Whilst I accept the position would be different with an informal oral agreement, that is not the case here. 49. The next question is whether the benefit of the fencing obligation passed to the claimant under the lease granted to him by the Council. In short, was the benefit intended to be personal to the trustees or was it attached to the land. Again it is necessary to look at the wording of the 1972 conveyance. The wording, as already indicated, speaks of an obligation ‘forever hereafter’ and would have little or no meaning if the benefit could not pass to the claimant. As soon as the trustees sold the land and had no interest in it, or they ceased to exist, it could not be required by the claimant to enforce the covenant; it would have no practical value or purpose. In all the circumstances, I am quite clear the benefit attached to the land passed to the claimant under the lease. This would be true even where the lease is silent on the issue, as one is entitled to look at the surrounding circumstances to assess the intention of the party. Again from the wording of the 1972 agreement, and all the surrounding circumstances, it is apparent that this was a benefit that was always intended to pass to the land. It does so both at common law and pursuant to section 78(1) of the Law of Property Act 1925.” 31. The appellant submitted the judge misconstrued the clause and reached the wrong conclusion on it. 32. The appellant submitted that clause 1 of the 1972 deed (which is the conveyance of the land) contains two clear easements and so would have been simple for draughtsman to put a fencing easement there too if that is what was intended, but he or she did not. Therefore that is an indication that clause 2 is not an easement. That is not a good point. Clause 1 is the conveyance between the vendor and purchaser of the land. Clause 2 is different. Irrespective of the issues of covenant vs easement, the clause takes effect between vendor and the trustees, who are the owners of the neighbouring land. There is nothing to assist the appellant in the fact that clause 2 is separate from clause 1. 33. A point was made about professional draftsmen (citing IDC Group v Clark [1992] 2 EGLR 184) but I was not persuaded that factor helps either way in this case. In IDC Group v Clark the clause in a professionally drafted deed contained the word “licence” which the court held no professional draughtsman would have used to create an easement. That makes sense but there is nothing like that in this case. The respondent submitted that since the deed here was drafted in 1972, which is after Jones v Price, it might be said a professional would at least know that it might be possible to create a fencing easement since the Court of Appeal had found that such an obligation could run with land. I am not persuaded the professional draughtsman point helps either way. 34. Turning to the words of cause 2 itself, it was common ground that, as Megarry (8th Ed) explains at 27-004 there are four requirements for an easement. There must be a dominant and servient tenement, the easement must confer a benefit on or “accommodate” the dominant tenement, the dominant and servient tenements must not