Don’t sit on the fence: landowners take note of decision on obligation to fence

09 Apr 2019

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 [2019] 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.

Further reading

IP in pole position in 2021

Victoria Watt takes a look at a hat trick of car-related cases that concluded last autumn that place IP firmly in the headlights
Read more Read

Happy New Year for leasehold property owners

Blog, Legal Updates
Lawrence Morley looks at government reforms that will make it easier and cheaper for leaseholders to buy  their homes
Read more Read

Mission accomplished! DMH Stallard completes charity trek to and from the North Pole in aid of St Catherine’s Hospice

Blog, News & PR
DMH Stallard completes Christmas charity trek from the North Pole to St Catherine's and back, raising money for a fantastic cause.
Read more Read

(Supply) chain reaction

Blog, News & PR
It’s no time to shy away from chasing debt when it’s your cashflow under pressure. Kelly Mills provides the focus.
Read more Read
  • Brighton Office

    1 Jubilee Street


    East Sussex

    BN1 1GE

  • Gatwick Office

    Griffin House

    135 High Street


    West Sussex

    RH10 1DQ

  • Guildford Office

    Wonersh House

    The Guildway

    Old Portsmouth Road



    GU3 1LR

  • Horsham Office

    Ridgeland House

    15 Carfax


    West Sussex

    RH12 1DY

  • London Office

    6 New Street Square

    New Fetter Lane


    EC4A 3BF

  • Get in touch