A recent decision by the Court of Appeal has over turned a High Court decision holding that a covenant to "maintain and forever after keep in good repair...stock proof boundary fences walls or hedges" did not in fact last forever.
The High Court had decided that this obligation in a 1972 conveyance had created a fencing easement. As an easement the obligation would be inherited by (and enforceable against) subsequent owners of the land. However, if (as the Golf Club claimed) the obligation was merely a positive covenant then it could not be enforced against subsequent owners unless each successive owner had agreed to be bound. The Court of Appeal held that there was no justification in construing the obligation other than as a positive covenant and as such without a chain of indemnity the obligation was unenforceable.
It is a well-established principle of English law that positive obligations do not automatically bind successors in title and this decision reinstates this principle. The law surrounding fencing easements is not clear and so it is good practice to ensure the enforceability of such obligations by ensuring suitable legal mechanisms are incorporated into the relevant legal documentation.
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