Fencing covenant

SmallWelshBarn
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Fencing covenant

Post by SmallWelshBarn » Tue Jan 22, 2019 8:55 pm

Question in relation to a fencing covenant.
A section of of my land abuts land currently owned by the woodland trust. Their is a fencing covenant for the benefit of my land. " The purchaser hereby covenants with the Vendor that he the Purchaser will on the signing hereof erect to the satisfaction of the Vendor and will forever hereafter maintain a good and stockproof fence along the boundary of the property herby conveyed and marked "T" inward on the plan annexed hereto."
I have a small holding and keep pigs and sheep so it is my responsibility to ensure my stock is kept safe. This weekend I had a wild boar push under the fence and cover one of my sow's and injure her. I contacted the Woodland trust and have pointed out that the fencing is clearly not stock proof. If a boar can get in my pigs now can get out.
Thus by definition the fencing is clearly not stock proof. Its simply posts 2m apart and stock fencing. I have spoken to some local farmers and they laughed at what the trust claimed is stock proof.
I fully understand the word stock proof fencing definition is open to wide interpretation. However if the fencing is not capable of keeping animals out or animals in its not stock proof.
The trusts manager response " We consider that we have complied with the stockproof fence requirement of the Conveyance dated 13th August 1962 between Scholey and Evershed, which I note does not contain a fencing specification nor does it specify ground level barbed wire. If you believe a different specification is required, pleas supply the documentary evidence for this "
Franky I am more than happy to take this to court and let a judge decide on the definition of stock proof any one know any case law on this ?
What are the forum members views ?

span
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Re: Fencing covenant

Post by span » Tue Jan 22, 2019 9:37 pm

Cheaper and faster to string some barbed wire yourself than to go to court.

mr sheen
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Re: Fencing covenant

Post by mr sheen » Tue Jan 22, 2019 9:45 pm

This is a positive covenant and hence almost impossible to enforce.
The other party asserts that they have complied with the covenant and hence you would have to prove that they did not comply with the covenant and that you have the right to enforce a positive covenant, ad infinitum, to a spec that you deem 'stock proof' (good luck with that - general opinion is that positive covenants are pretty well unenforceable) and you will have to prove this in court which will cost a fortune and for which your probability of success is very low.

If you have valuable livestock, then presumably you would take appropriate actions to protect them (in fact courts expect people to take appropriate action to protect their own property).

It is unlikley that a not-for-profit organisation would be held to be liable for the actions of wild animals. A barrister would probably argue that wild boar is not 'stock' and that the fence is appropriate for 'stock' ie livestock kept on farms eg sheep.

SmallWelshBarn
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Re: Fencing covenant

Post by SmallWelshBarn » Tue Jan 22, 2019 10:45 pm

mr sheen wrote:
Tue Jan 22, 2019 9:45 pm
This is a positive covenant and hence almost impossible to enforce.
The other party asserts that they have complied with the covenant and hence you would have to prove that they did not comply with the covenant and that you have the right to enforce a positive covenant, ad infinitum, to a spec that you deem 'stock proof' (good luck with that - general opinion is that positive covenants are pretty well unenforceable) and you will have to prove this in court which will cost a fortune and for which your probability of success is very low.

If you have valuable livestock, then presumably you would take appropriate actions to protect them (in fact courts expect people to take appropriate action to protect their own property).

It is unlikley that a not-for-profit organisation would be held to be liable for the actions of wild animals. A barrister would probably argue that wild boar is not 'stock' and that the fence is appropriate for 'stock' ie livestock kept on farms eg sheep.
You are wrong it can and has been enforced. See the case law below. I'm more than happy to take it to court the cost is not an issue the principal however is.

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 [2018] 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 [1965] 2 QB 618; and Crow v Wood [1971] 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 [2018] 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.

ukmicky
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Re: Fencing covenant

Post by ukmicky » Wed Jan 23, 2019 12:03 am

Stock proof fences are the only fencing Covenants that can be enforced where there is no privity of contract. What the original court did by deeming them to be a form of easement is sort of wrong as they are not easements and it has been acknowledged in the courts since as being not quite right but the decision was made and can’t now be changed.

That doesn’t help you though as what is deemed stock proof Is dependant on what livestock is being kept . What’s good for a sheep may not be good enough for cattle. Stock proof does not mean it has to stop all animals from passing through ,only normal farm animals exhibiting normal behaviour. They do not have to prevent the transit of wild animals , imagine how hard and unfair that would be.

Male wild boar hunting for females will find there way through most things if they smell a possible mate on the other side .

I’m afraid you will need to provide your own protection and you may require an electric fence.
Any information provided is not legal advice and you are advised to gain a professional opinion

MacadamB53
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Re: Fencing covenant

Post by MacadamB53 » Wed Jan 23, 2019 12:09 am

ukmicky wrote:
Wed Jan 23, 2019 12:03 am
Stock proof fences are the only fencing Covenants that can be enforced where there is no privity of contract. What the original court did by deeming them to be a form of easement is sort of wrong as they are not easements and it has been acknowledged in the courts since as being not quite right but the decision was made and can’t now be changed.

That doesn’t help you though as what is deemed stock proof Is dependant on what livestock is being kept . What’s good for a sheep may not be good enough for cattle. Stock proof does not mean it has to stop all animals from passing through ,only normal farm animals exhibiting normal behaviour. They do not have to prevent the transit of wild animals , imagine how hard and unfair that would be.

Male wild boar hunting for females will find there way through most things if they smell a possible mate on the other side .

I’m afraid you will need to provide your own protection and you may require an electric fence.
+1

SmallWelshBarn
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Re: Fencing covenant

Post by SmallWelshBarn » Wed Jan 23, 2019 1:01 am

The land for the last 100 years has had a mix of pigs and sheep.
Stock fencing without barb wire along the bottom is next to useless. All my land has barb wire fitted except the section that is the woodland trusts responsibility.
Pigs can push up standard wire and escape. So it’s not by definition stockproof: Barb wire helps prevent this.
I will be interested to take this to court as let the judge decide on what is the definition of stock proof.

mr sheen
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Re: Fencing covenant

Post by mr sheen » Wed Jan 23, 2019 7:22 am

The principle in law is the 'reasonable man' principle, not what you consider 'stock proof'.
The Trust have provided fencing that is reasonable for normal stock eg sheep.

The fact that you have put barbed wire all around your property to improve the strength of the fence but failed to do that on this section of fence also goes against you since it indicates that you are aware that the stock you keep is not just normal stock and requires additional parts to the fence, yet you still failed to do this at this section.

I also own farms and standard stock fencing is sheep wire with barb or non barb straining wire as single or double strands on top. Where pigs are kept (and only where the pigs are kept) we use either strands of barb added to the bottom or use electric fence. It is entirely our responsibility to keep our pigs in. For poultry we use 6 ft fencing and for valuable poultry they are fully enclosed. For deer we have 8+ft fencing. The type of stock we choose to keep determines the type of fence we put in place since it is our responsibility to protect our own livestock. Even then it is almost impossible to protect 100% against determined wild animals eg foxes and wild boar.

If you kept deer would you expect 9ft fence provided by your neighbour?

You are on a loser taking this to court but if you have money to burn and a need to satisfy an adversarial nature then carry on and let a Judge define 'stock fence' for the reasonable man for you.

Morgan Sweet
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Re: Fencing covenant

Post by Morgan Sweet » Wed Jan 23, 2019 2:19 pm

Surely the fence has been 'stock proof' since it has kept your stock safe. A wild animal (probably not classed as normal agricultural stock) has now damaged the fence leaving it in a state that is not stock proof. I think that all you can do is point out to the Woodland Trust that the fence has been damaged by a wild animal and therefore is no longer stock proof and ask if it could be repaired. I have large amounts of land where the neighbours have to provide and maintain stock proof fencing and it is all posts (mostly rotten) with Rylock stock type fencing stapled to them and a wooden top rail. I would ask the trust if I could attach some barbed wire to the posts rather than try taking them to court, however if you do and are successful please let me know.

SmallWelshBarn
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Re: Fencing covenant

Post by SmallWelshBarn » Wed Jan 23, 2019 3:47 pm

mr sheen wrote:
Wed Jan 23, 2019 7:22 am
The principle in law is the 'reasonable man' principle, not what you consider 'stock proof'.
The Trust have provided fencing that is reasonable for normal stock eg sheep.

The fact that you have put barbed wire all around your property to improve the strength of the fence but failed to do that on this section of fence also goes against you since it indicates that you are aware that the stock you keep is not just normal stock and requires additional parts to the fence, yet you still failed to do this at this section.

I also own farms and standard stock fencing is sheep wire with barb or non barb straining wire as single or double strands on top. Where pigs are kept (and only where the pigs are kept) we use either strands of barb added to the bottom or use electric fence. It is entirely our responsibility to keep our pigs in. For poultry we use 6 ft fencing and for valuable poultry they are fully enclosed. For deer we have 8+ft fencing. The type of stock we choose to keep determines the type of fence we put in place since it is our responsibility to protect our own livestock. Even then it is almost impossible to protect 100% against determined wild animals eg foxes and wild boar.

If you kept deer would you expect 9ft fence provided by your neighbour?

You are on a loser taking this to court but if you have money to burn and a need to satisfy an adversarial nature then carry on and let a Judge define 'stock fence' for the reasonable man for you.
I have put barb wire on my fences as the fences belong to me. The other fence does not belong to me the posts and the stock fencing does not belong to me. If I nail barb or anything to it and damage the fence then I possibly could be liable.
Pigs are classed as stock if they can get out then the fence is clearly not stock proof. Wild boar have damaged the fence..... the responsibility is the woodland trusts to fix it. The covenant is for them to maintain it.
A section of fence that is in their control already has barb installed by them some years ago. I am their for asking them to ensure this section of fence is to the same standard.
Sheep can and do squeeze under stock fencing that is with out barb wire. The court will need to define the term stock proof. I am more than happy to test that argument.

stufe35
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Re: Fencing covenant

Post by stufe35 » Wed Jan 23, 2019 4:43 pm

There is another issue you may have, my understanding is that the covenant you have was made between Scholey and Evershed. Neither you nor the woodland trust are these people, so may not have entered into the covenant and cannot seek to enforce it. It depends if it runs with the land or not. see viewtopic.php?f=6&t=1727 .

Its a complicated one in some cases covenents pass on in some they don't, but once one person has moved on they potentially become unenforceable. You need some one with more knowledge than me to unravel it.

SmallWelshBarn
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Re: Fencing covenant

Post by SmallWelshBarn » Wed Jan 23, 2019 6:02 pm

stufe35 wrote:
Wed Jan 23, 2019 4:43 pm
There is another issue you may have, my understanding is that the covenant you have was made between Scholey and Evershed. Neither you nor the woodland trust are these people, so may not have entered into the covenant and cannot seek to enforce it. It depends if it runs with the land or not. see viewtopic.php?f=6&t=1727 .

Its a complicated one in some cases covenents pass on in some they don't, but once one person has moved on they potentially become unenforceable. You need some one with more knowledge than me to unravel it.
The latest update on fencing covenants is as follows. Taken from google.

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 [2018] 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 [1965] 2 QB 618; and Crow v Wood [1971] 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 [2018] 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.

stufe35
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Re: Fencing covenant

Post by stufe35 » Wed Jan 23, 2019 7:03 pm

It is possible to find an argument for any situation you care to mention on the glorious internet. It's whether what you have found actually applies to the situation and wording you have that is the question.

Be careful that you don't absorb every paragraph that you see that supports your argument, whilst ignoring every paragraph that says otherwise.

By ukmickys comment the case you are quoting was an anomaly rather than the norm.

Legal action is very very expensive.

If you decide to go ahead, good luck and please keep us informed with how it's going.

SmallWelshBarn
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Re: Fencing covenant

Post by SmallWelshBarn » Wed Jan 23, 2019 9:39 pm

I think the key words in the Churston Golf Club v Haddock is "maintain and forever hereafter keep in good repair" the words are the same in this matter. The trust admit that they have an obligation what they don't agree on is the interpretation of stock proof fence.
Interestingly the forestry commission when instilling stock proof fence the standard is barb on the bottom and top. I am not afraid of court.

MacadamB53
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Re: Fencing covenant

Post by MacadamB53 » Wed Jan 23, 2019 9:51 pm

ukmicky wrote:
Wed Jan 23, 2019 12:03 am
Stock proof fences are the only fencing Covenants that can be enforced where there is no privity of contract. What the original court did by deeming them to be a form of easement is sort of wrong as they are not easements and it has been acknowledged in the courts since as being not quite right but the decision was made and can’t now be changed.

That doesn’t help you though as what is deemed stock proof Is dependant on what livestock is being kept . What’s good for a sheep may not be good enough for cattle. Stock proof does not mean it has to stop all animals from passing through ,only normal farm animals exhibiting normal behaviour. They do not have to prevent the transit of wild animals , imagine how hard and unfair that would be.

Male wild boar hunting for females will find there way through most things if they smell a possible mate on the other side .

I’m afraid you will need to provide your own protection and you may require an electric fence.
this covers what you need to know

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