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MarianC, Solicitor
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Marian The saga of my 'simple' garden purchase (see our

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Hello Marian
The saga of my 'simple' garden purchase (see our previous conversation) drags on, and I have another question for you. I have just received a draft of form TP1, the deed of transfer, from the seller's solicitor. This contains at section 12 'Additional provisions' three unexpected covenants. They deal with the maintenance of fences and responsibility for boundaries. I had agreed with the seller that I will erect a fence to mark the new boundary, and the responsibility for other boundaries is a matter of long-term custom and agreement. It seems to me that these matters should not be made into covenants, which will become unnecessary charges on the Land Register.I attach a scanned copy of the relevant section. Could you please advise me on this point?Best regards
Charles Lambert

Good afternoon Charles

Lovely to hear from you, I do hope you are well.

The covenants are not especially onerous, they will as you say be stated on the register as covenants (they would not be charges) and will bind the land for future purchasers/land owners. I do not see any particular issue with having these registered, especially if you have previously agreed these in any event, as it does set out the position regarding the boundaries should there ever be a dispute in the future.

If you are certain you do not want these registered, you can raise your concerns with the seller's solicitor although I suspect they will advise that there is no reason for them not to be on the register if you have previously agreed these.

I hope this provides some assistance.

Customer: replied 19 days ago.
Thank you, ***** ***** we are well and I hope you, too, are weathering the lock-down.
I agree that the obligations are not very onerous and am happy to accept them for myself, as informal or customary arrangements. The problem I see with a covenant is that it operates in perpetuity and binds a future purchaser, from whom I would need an indemnity. Also, I'm wary of making fence maintenance the subject of a covenant, in the wake of Churmston v Haddock [2019] EWCA 544.
Customer: replied 19 days ago.
Sorry, I misspelt the title of the appeal case. It should read "Churston Golf Club Ltd v Haddock".

We are getting through it, slowly but surely.

Unfortunately you will need to provide any onward purchaser with an indemnity otherwise you will be personally bound by the covenant even after you sell the land. You will either need to revert to the solicitor and confirm you are happy to accept the arrangements but would prefer a personal, separate agreement between yourself and the seller although I cannot see this being agreed if i'm completely honest as the seller will likely want any future owner to carry on the obligations.

What is your concern with the Churston case? My understanding is that it was held that the clause in question to erect and maintain a fence did not constitute an easement and thus not binding on successors in title.

Customer: replied 19 days ago.
Thanks. Your answer confirms my concern. I agreed to erect a fence on completion, not to guarantee its maintenance in perpetuity. I certainly don't want to be under a covenant of obligation for which I have to seek indemnity in the future.My real concern is that the creation of these covenants are an unnecessary burden on the title. They were not raised in negotiations and I did not agree to them. Taking the other two covenants in turn:
(2) Responsibility for boundaries, the boundary with the field in this case, are usually the subject of questions before contract, aren't they? I have never owned a property in which responsibility for boundaries was passed to me by covenant.
(3) I don't want a covenant to maintain the existing fence on the opposite boundary (referred to in the mis-drafted item 3); the seller is under no such covenant and the maintenance of that fence will be a matter between me and the other neighbour (not the seller).My concern with Churston is probably spurious but it wasn't clear to me whether the servient proprietor's successors are released from the obligation, or the dominant proprietor's successors relieved of the right to claim, or both.I think I must revert to the seller's solicitor and resist these covenants, though I would welcome any further thoughts you have.Best regards

Morning Charles

Taking the covenants in turn

2) Yes, they are usually the subject of enquiries before contract but it is not at all unusual for maintenance of boundaries to be recorded as covenants on title. Sometimes the result of a previous dispute or simply because neighbours wish to record who is responsible to prevent future disputes. But as I say, it is not unusual for this be recorded.

3) I completely agree with your comments here, if this boundary is nothing to do with the seller, they are not entitled to insist on a covenant to be created. If the seller is not the owner of the land which would have the benefit of the covenant, he cannot create it. I would query this with their solicitor.

In respect of Churston - it is essentially both as they work hand in hand. It was held the covenant did not run with the land, thus the dominant proprietor cannot claim and the servient proprietor was under no obligation.

I would most certainly revert to the seller's solicitor and query the third covenant as the proprietor of No.7 (as referred to in the transfer) is not a party to the transfer therefore this covenant cannot be created.

I would expect the solicitor to insist on the other two points so it may be worth suggesting that you are happy to enter into a separate agreement in this regard or have the wording amended so it is personal rather than binding on the land.

I hope this helps.

MarianC and other Law Specialists are ready to help you

Hi Charles

Apologies, I did not see your request for a phone call.

Did you still wish to speak?

Customer: replied 17 days ago.
I spoke to Joseph. We discussed the second covenant, regarding the boundary with the field. The same argument applies to this boundary as to that with No.7 Wallingford Road. The owner of the field is not a party to the conveyance, so the covenant is inappropriate. I have since written to the seller's conveyancer asking for those two covenants to be struck out. I also explained that I will accept responsibility for maintaining the new boundary but not, specifically, the provision of a fence. My choice of structure on my side of the boundary should not be prescribed in the deeds. It would, of course, be constrained by any applicable statutes and should, ideally, be a matter of agreement from time to time between me and my neighbour, but that is not a matter for covenant.
As I have explained to the seller, in writing and separately, I stand by my agreement to erect a fence in the first instance. I think that's all he cares about and that his solicitor has over-egged the point in drafting the transfer. The solicitor has acknowledged my letter and is consulting her client. I'll let you know how it works out.

Hi Charles

That's great. It appears you and the seller are in agreement so hopefully his solicitor follows suit!

Have a lovely weekend and let me know if you need anything further.

Kind regards


Customer: replied 12 days ago.
Hello Marian.The seller has agreed to my amendments but his solicitor has asked me to draft the boundary covenant. I have been unable to find a specimen covenant that refers only to maintenance of the boundary without reference to a specific structure. I suppose that's not surprising since we are dealing with the physical, rather than the legal, boundary and a physical boundary requires a physical feature. I want to avoid a covenant that says it will forever be a fence, rather than some other feature in the future, so I have drafted the following:"The transferees hereby jointly and severally covenant with the transferor to erect a fence within one month of the date hereof between the points A and B marked on the plan annexed hereto and thereafter to maintain it or such other physical demarcation as they may from time to time agree with the transferor such agreement not to be unreasonably withheld."Could you please comment on the legal efficacy of this wording and whether, in your reading of it, it achieves my aim?Regards

Hi Charles

I'm glad the sellers solicitor has agreed to your amendments.

The wording of your covenant would suffice however the final sentence 'such agreement not to be unreasonably withheld' does not quite work in this context.

Bear with me and I will look into this for you

Customer: replied 11 days ago.
Thanks. I wasn't quite sure about those words. They are intended to guard against specious objections from the seller, but perhaps they aren't necessary.
Customer: replied 10 days ago.
Hello Marian,I wonder if you have had time to look into this, yet? I would quite like to respond to the seller's solicitor before the weekend, if possible.Best regards
Customer: replied 6 days ago.
Hello Marian,
Any word on this, yet?
Regards, Charles

Hi Charles

I've been looking for this thread but it seemed to disappear from my list so I couldn't respond! Apologies.

Does it need to be a fence that is erected within a month? As changing the wording around slightly as per the below would give you the effect you are looking for:

'The transferees hereby jointly and severally covenant with the transferor to erect a fence or other such physical demarcation within one month of the date hereof between the points A and B marked on the plan annexed hereto and thereafter to maintain it.'

Customer: replied 6 days ago.
Actually, we could take out the time factor, since that has not been specified. The verbal agreement I made with the seller is that I will put up a fence, specifically. Our mutual intention is that this will happen without delay after the transfer. I took this to be an initial commitment and was not expecting it to become a perpetual obligation. His solicitor seems to have advised him to make it a covenant. I will accept a covenant for maintenance of the boundary but I want to reserve the right to change the type of physical feature in the future since it will be my property. In other words, it can be a fence now and some other structure in the future, which will be my responsibility to maintain.I think your wording is an improvement. My only concern is that it may be construed to mean that whatever is first erected, that's what I will always maintain, which doesn't quite give me the freedom of future choice.I may be over-sweating this, but it would not have become a concern if the other side hadn't sought to make a simple initial agreement into a binding covenant. I doubt that I can persuade them, having come this far, to remove the covenant altogether.

Noted, how about:

The transferees hereby jointly and severally covenant with the transferor to erect a fence between the points A and B marked on the plan annexed hereto and thereafter maintain it. The transferee may replace the fence with other physical demarcations with the consent of the transferor, such consent not to be unreasonably withheld or delayed.

Customer: replied 6 days ago.
I think that covers it perfectly. Thank you. I'll let you know how things turn out.Best regards,

Great, have a lovely day