Who Bears the Financial Burden of Fencing Boundaries? High Court Guidance

Posted: 26th February 2018

Fencing off land costs money and it is not uncommon for landowners on either side of a boundary to dispute where that responsibility lies. In a case that involved in depth analysis of the law on the issue, the High Court found that a clause in a 46-year-old conveyance validly cast the financial burden on a golf club.

The 1972 conveyance included a covenant which bound the golf club’s predecessor to maintain a fence between its leasehold land and adjoining farmland. There was no dispute that the tenant of the farmland enjoyed the benefit of that clause and, after he launched proceedings, a judge found that it created an easement in his favour and that the golf club bore responsibility for fencing the boundary.

In challenging that ruling, the club argued that it was legally impossible for the clause to have created a fencing easement. That was on the basis that easements - which impose obligations on one piece of land for the benefit of another - cannot impose positive duties to do something, such as spend money. It was also submitted that the clause did not bear the meaning contended for by the tenant of the farmland.

The Court acknowledged that fencing easements have an anomalous character. In dismissing the club’s appeal, however, it noted that English law has historically recognised that a fencing obligation between neighbours in the nature of an easement can exist and will run with the land, binding successors in title. The clause created a legal obligation that went beyond a purely personal contract between the original parties to the conveyance and had been correctly interpreted by the judge.

Churston Golf Club v  Haddock. Case Number: B00TQ111