The Court of Appeal has decided that an obligation to fence is not an easement and will not bind future owners of the land. Landowners must therefore use one of the more traditional mechanisms to ensure that positive obligations can be enforced against future owners.
Facts of the Case
We looked at the High Court decision in this case last year where it was decided that an obligation to fence was an easement (rather than a covenant) and would therefore bind future land owners.
In Churston Golf Club v Haddock  EWHC Civ 544 (Ch), the Court of Appeal has reversed the decision of the High Court and decided that an obligation to fence was not an easement and was, in fact, a positive covenant which would not bind future land owners.
What does this mean in practice?
A positive covenant is usually an obligation to do something, for example to pay money to maintain a private road or to plant trees on a boundary. Only the original party to a document is liable for any breach unless one of the mechanisms which have been created to bind future owners have been used.
The most common of these is requiring a new landowner to enter into a deed of covenant with the person benefitting from the covenant that they will perform the covenant and will not sell the land unless any new owner also enters into a deed of covenant. The requirement for a deed of covenant is usually noted on the Land Registry title and the landowner cannot sell until the deed of covenant has been given.
As a result of this Court of Appeal’s decision, landowners must ensure that an appropriate mechanism is used otherwise they may not be able to enforce positive obligations against future owners.