Positive Covenants and Successors in Title
News article published on: 23rd August 2019
The decision in Churston Golf Club Ltd v Haddock  EWCA Civ 544
Property lawyers will have been relieved by the Court of Appeal’s decision in Churston Golf Club Ltd v Haddock (2019) which determined that a fencing obligation in a conveyance was not an easement but a positive covenant and, therefore it could not bind successors in title.
In this case, Mr Haddock brought proceedings against tenant of Churston Golf Club, adjacent to his farm. He claimed that there had been a breach of a covenant in a 1972 conveyance of the gold club land to “maintain and forever after keep in good repair…stockproof boundary fences or hedges along such parts of the land… as are marked T inwards on the plan.”
Birss J agreed with Mr Haddock and determined that a fencing easement was created. As a result the gold club owners were bound by this obligation even though they were not a party to the 1972 conveyance. It is long established that the burden of positive covenants cannot directly run with the land and therefore bind successors in title. However this decision if it had stood would have an example of the Court trying to give effect to the original parties intention by characterising a positive covenant as a fencing covenant so that it binds successors in title.
The golf club appealed the decision on the basis that the obligation was simply a positive covenant and not a fencing easement and therefore it could not be enforced by the successors to the original parties. The Court of Appeal agreed with this analysis and determined that the gold club owners were not bound by the obligation and therefore were under no obligation to maintain the fence.
Property lawyers need to be alert to the fact that when creating a positive obligation which they intend should bind successors in title, appropriate wording needs to be included in the transfer to allow this.