Many landowners are familiar with the practice of allocating boundary responsibilities in deeds. Generally speaking problems should not arise where future adjoining landowners continue to comply with the previously allocated boundary responsibilities.

Under the rule in Austerberry v Corporation of Oldham (1885) covenants to fence land are considered to be positive in nature, and as such not capable of automatically passing  to future owners, remaining contractual between the original parties.

However the Court of Appeal has previously found in several cases in the 1960’s and 1970’s that the right to have a wall or fence kept in repair can  constitute the grant of a right akin to an easement,  and as such is capable of running with the land and binding future owners, contrary to the established principles about positive obligations. These decisions have been helpful in resolving disputes over boundaries between future adjoining owners, but are dependent upon the words used in the deed to create the boundary obligation being construed a grant of a right.

These principles were recently considered again in the case of Churston Golf Club v Haddock 2018 where on appeal the court was required to consider whether the Golf Club had an obligation (owed to Mr Haddock who was an adjoining tenant) as the leasehold owner of the land to fence its boundary arising out of a covenant to ‘maintain and forever hereafter keep in good repair’ contained  in a 1972 conveyance of the freehold title. The judge in this case decided that the inclusion of the words ‘forever hereafter’ was strong evidence of the intention that the covenant was a grant of a right to have the boundary maintained, and that as such, bound successors in title, in this case the leaseholder owner.

Points arising: when buying land or taking a lease check for any boundaries responsibilities, the condition of them,  and who is liable for the  cost of maintaining them. If the deeds are silent, then the case law above may not assist in resolving a dispute.

This article is published for general information and does not constitute specific legal advice. Please contact us at commprop@prettys.co.uk for more information or for specific advice.