When is a covenant not a covenant? Perhaps when the judge decides it is an easement? In the recent case of Churston Golf Club v Haddock  EWHC 347 (Ch), the court interpreted the language of a 1972 conveyance (which, for all the world, appeared to have imposed a covenant) and construed the drafting as having created an easement.
This case was an appeal from a county court case in which it had been held that the golf club, as the leasehold owner of land which adjoined farm land tenanted by Haddock, owed an obligation to Mr Haddock, in the form of a fencing easement, to maintain a fence on the boundary between the two properties. The easement was purportedly created by a conveyance of the golf club land to the current freeholder in 1972. However, the language of the ‘easement’ was peculiar, as it appeared to create a covenant instead. Clause 2 of the 1972 conveyance read 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.”
Even to the trained eye, this clause appears to create nothing more than a positive fencing covenant. As a positive covenant, it would be binding upon the original purchaser, but would not bind its successors in title or their tenants. If the clause could be construed as an easement, it was capable of binding successors in title and their tenants.
Is there such a thing as an easement of fencing, requiring a landowner to repair fences on its land? It has long been established by case law that such a right can exist as an easement. See Jones v Price  2 QB 618; and Crow v Wood  1 QB 77. A fencing easement is referred to by the text books and case law as a ‘spurious’ easement, given that it requires positive action on the part of the servient owner to support the right and therefore conflicts with the normal principle that the right ought not to involve the servient owner in the expenditure of money. Given that such an easement can exist, however, a key question is whether the easement can be expressly granted, or whether it can only arise through prescription. Megarry & Wade (at para 30-022) concludes that “it is impossible to draft an express grant of such a right. It could only be created expressly by means of a covenant”. However, in Churston Golf Club v Haddock  EWHC 347 (Ch), the High Court determined that it is legally possible to create a fencing easement by express grant, and that the language of a conveyance from 1972 had done exactly that. The judge said: “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”.
Perhaps the more interesting feature of this case is the interpretation of the right itself. Why did the judge elect to construe this ‘covenant’ as a fencing easement? The judge stated that it was clear law that a clause in a transfer or conveyance could be construed as the grant of an easement, even though it is framed expressly in terms as a covenant, and even though the word “covenant” is used. The judge (as did the county court judge) latched on to the words “forever hereafter”. These words showed that the parties intended that the obligation would last into the future, beyond changes of ownership. Such an intention was too easy to defeat if the clause was interpreted as a covenant. The judge ignored the significance of an earlier clause of the same conveyance which had created two clear easements (why was not the fencing “easement” included in that clause?) and also ignored the fact that the parties had chosen to use the word “covenant” in clause 2 instead of “easement”.
The outcome is puzzling. To have a clause which opens with the words “The Purchaser hereby covenants” construed as an easement seems to fly in the face of common sense. The judge attached great significance to the requirement to maintain a fence in good repair “forever hereafter”, and assumes that the intention was therefore to create a right that would affect successors in title. However, the covenant can equally be construed as a simple covenant by the purchaser that it will ensure that the purchaser and its successors will forever thereafter maintain the fencing. This would mean that the purchaser would be liable, under its positive covenant, for the failure by its successors in title to maintain the fence. This seems a much more natural interpretation of the clause.