It has always been a fundamental principle of property law in this country that whilst individual parties can agree to accept obligations to do things in the future, they cannot bind their successors in title unless their successors also sign a document accepting that burden. It is for this reason that leasehold arrangements are sometimes used (to ensure covenants remain enforceable) or a restriction is placed on the title of a property requiring any new owner to agree to be bound by any relevant burdens in the future (usually having entered into a deed of covenant with the party who has the benefit of the obligation).
These arrangements relate to positive covenants and are distinct from restrictive covenants which if imposed correctly have the effect of burdening one property for the benefit of another in perpetuity.
Arrangements relating to fences have always been slightly different and the Courts have accepted that an obligation to maintain a fence (termed a fencing easement) could be created by a course of conduct so as to bind future land owners.
The High Court has now held that a fencing easement imposing a positive obligation to maintain a fence could be created by express drafting (i.e. in a document signed and entered into between the original parties) so as to bind successors in title.
The decision relates to fencing covenants only and so the flood gates which positive covenants might represent haven’t been opened. Whether the decision will stand scrutiny by higher courts (if appealed) remains to be seen. For the time being, the Case represents an extremely interesting development and one which parties involved in imposing or accepting positive covenants should be mindful of given the possible ramifications of the decision.
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