swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Registered Land - From: 2002 To: 2002
This page lists 14 cases, and was prepared on 27 May 2018.
Swainland Builders Ltd v Freehold Properties Ltd [2002] EWCA Civ 560; [2002] 2 EGLR 71; [2002] 23 EG 123; [2002] 17 EG 154
2002
CA
Lord Justice Peter Gibson
Equity, Contract, Registered Land
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially proposed to let on shorthold tenancies but with a view to granting long leases at premiums in the future.
In October 1998 Freehold Properties Ltd agreed to buy the block for £60,000. It correctly understood the aggregate ground rents of £4,875 on the assumption that all 39 flats were let on the same long leasehold terms. By September 1999 the vendor's solicitor had confirmed by letter to the purchaser's solicitor that the vendor was not intending to sell flats 11 and 18 and in the interim the vendor was to be treated as any other tenant of the block.
Long leases of the two flats were never granted and the transfer of the freehold by the vendor failed to reserve any rights to the two flats for the benefit of the vendor. On becoming aware of that omission the vendor issued proceedings claiming that there had been a mistake which was common to the parties and contrary to their common intention.
At trial Neuberger J concluded that the intention of the parties seemed quite clear from the evidence. He ordered rectification of the transfer so as to provide for the grant to the vendor of leases in respect of the two flats. Held: The court summarised the requirements for rectification for mutual mistake, namely: "The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of the execution of the instrument sought to be rectified; (4) by mistake, the instrument did not reflect that common intention. The following points derive from the authorities: (1) the standard of proof required if the court is to order rectification is the ordinary standard of the balance of probabilities . . (2) While it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if, in substance and in detail, the common intention can be ascertained . . (3) The fact that a party intends a particular form of words in the mistaken belief that it is achieving its intention does not prevent the court from giving effect to the true common intention . . "
1 Citers
[ Bailii ]
Halifax Plc v Omar [2002] EWCA Civ 121
20 Feb 2002
CA
Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker
Land, Equity, Registered Land
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent owner. The tenant claimed to have taken and paid for a lease from one of the later parties to the fraud. He claimed an equitable charge by subrogation in priority to the claimant. The lender had not taken steps to register any caution to protect its interests. Held: There are three requirements for subrogation. The money must have been used to pay the purchase price, that it had been paid by them solely for this purpose, and that the transaction was always to be on the basis that they would achieve a charge. Tracing is neither a claim nor a remedy but a process, and subrogation is a remedy, not a cause of action. The respondent was an innocent third party purchaser without notice of the claimant's interest. There is a distinction between subrogation to a security, which includes rights in rem, and subrogation merely to the indebtedness itself which operated only in personam. The doctrine of subrogation is that, where A's money is used to pay off B, a secured creditor, A is entitled in equity to an assignment of B's security rights. The appeal failed, and the interest of the lender had priority.
1 Cites
1 Citers
[ Bailii ]
Hancock v Woods [2002] EWCA Civ 373
22 Feb 2002
CA
Registered Land
Application for permission to appeal.
[ Bailii ]
Malory Enterprises Ltd v Cheshire Homes (UK) Ltd and others Times, 21 March 2002; [2002] EWCA Civ 151; [2002] Ch 216; [2002] 3 WLR 1
22 Feb 2002
CA
Lord Justice Schiemann, Lord Justice Clarke and Lady Justice Arden
Registered Land, Torts - Other
The applicant said that its land had been misappropriated, and sought rectification of the register against the respondent who was a successor in title having bought the land from the wrongdoer. Held: On registration, section 69 operated to vest only the legal title in the prior registered proprietor. The transfer being of no effect in law, it was not a 'disposition', and the beneficial owners retained the right to sue in trespass without prior rectification. The discretionary nature of the right of rectification did not prevent it being an over-riding interest under 70(1)(g), and that right was transmissible. Rectification could not be made subject to terms. The claimant being in actual occupation, so as to enjoy an overriding interest, their claim succeeded.
Land Registration Act 1925 69 70(1)(g) 82
1 Cites
1 Citers
[ Bailii ]
P and O Overseas Holdings Ltd v Rhys Braintree Ltd and Another Times, 05 April 2002; [2002] EWCA Civ 296
12 Mar 2002
CA
Sir Andrew Morritt, Vice-Chancellor, Lord Justice Mantell and Lord Justice Tuckey
Contract, Land, Registered Land
The first defendant appealed the award of interest on an order for specific performance of a contract for the sale of land. It had declined to complete the purchase because the seller had not been registered as proprietor of the land, and the transfer to it had not been stamped. Held: The transfer to the seller would not be stamped until after completion, and that was not a good reason for delaying completion. Interest was payable from the date requested for completion since the seller was able to complete on that date.
Land Registration Act 1925 37 110(5)
1 Cites
[ Bailii ]
Prestige Properties Ltd v Scottish Provident Institution and Others Times, 23 May 2002
13 Mar 2002
ChD
The Hon Mr Justice Lightman
Registered Land
The claimant sought compensation from the Land Registrar for losses arising from following the results of an index map search. They relied upon a certificate showing certain land to be unregistered, in entering into a contract for its sale. A retention was made against the need to register. The errors caused it to be impossible to obtain the title. The registry argued that the search should have led the claimant to make further enquiries. Held: the rules were simple. The search certificate was incorrect. Under the Act, compensation was payable where loss was incurred "by reason of" an error in an official search. That did not require the error to be the sole cause of the loss, but merely a cause. The duty of care expected of the Registry was akin to that which was to be expected of a conveyancer, and the certificate was not a signpost to other inquiries and could be relied upon in respect of that which it certified.
Land Registration (Open Register) Rules 1991 (SI 1992 No 122) 9 - Land Registration Act 1925 81
Prestige Properties Ltd v Scottish Provident Institution and Another [2002] EWHC 330 (Ch)
13 Mar 2002
Chd
Registered Land
[ Bailii ]
Half Moon Bay Limited v Crown Eagle Hotels Limited (Appeal No 31 of 2000); [2002] UKPC 24; (Appeal No 31 of 2000)
20 May 2002
PC
Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton
Registered Land, Land, Commonwealth
Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent's predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners. Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered.
Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica)
1 Cites
[ PC ] - [ PC ] - [ PC ] - [ Bailii ]
UCB Group Ltd v Gillian Hedworth Times, 13 June 2002; Gazette, 04 July 2002; [2002] EWCA Civ 708
24 May 2002
CA
Lord Justice Johnathan Parker
Registered Land, Trusts
The claimant was a registered chargee of the property. The respondent claimed an overriding interest. The registered proprietor held the land under a bare trust for the defendant, paying her a weekly rent. She was not in occupation. She had registered a caution. Held: The caution had been properly discharged. A beneficial interest under a bare trust of registered land was a minor interest and not a registrable estate, and could be protected by a restriction only, and rent paid out under such a trust did not 'issue' out of the land and was not an overriding interest.
Registered Land Act 1925 2(1) 70(1)(g)
[ Bailii ]
Man O'War Station Limited and Huruhe Station Limited v Auckland County Council (formerly Waiheke County Council) and H M Attorney General for New Zealand (Judgment No 2) [2002] UKPC 32
17 Jun 2002
PC
Land, Registered Land, Commonwealth
(New Zealand) A road was to be constructed over land but the land was sold with no entry in the registers to indicate any public right of way. The land owner said no right of way existed. The authority said that the dedication followed from the circumstances. Held: Persons with an interest contrary to the claimed easement must consent to any implied dedication. Crown consent had not been obtained, but was not in this case necessary, and upon dedication, the land vested automatically and withoutmore in the Crown.
1 Citers
[ PC ] - [ Bailii ] - [ PC ]
Bryant Homes Northern Ltd v Thompson [2002] EWCA Civ 1080
25 Jul 2002
CA
Registered Land
Land Registration Act 1925 56(3)
[ Bailii ]
Thompson v Bryant Homes Northern Ltd [2002] EWCA Civ 1079
25 Jul 2002
CA
Registered Land
[ Bailii ]
Brazil v Brazil; CA 31-Jul-2002 - Times, 18 October 2002; [2002] EWCA Civ 1135; [2003] CP Rep 7
Rodney District Council and others v Attorney General [2002]UKPC 47
7 Oct 2002
PC
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough
Rating, Registered Land
(New Zealand) The appeal concerned the rating of properties. Where two properties were held under the same land certificates, was this enough to have require only one listing on the valuation roll. New Zealand uses the Torrens style of Land Registration, under which, it was argued, the unit of registration determined also entries for 'separate properties'. This has its origin in Scots law. The authorities contended that the test was rather the unit of occupation. Held: The expression "separate property" was not defined. It was to be interpreted within the context in which it was used. In this case that meant rating, not land law, and it was dangerous to bring forward meanings for wordings from earlier statutes. Separate occupation was the correct criterion.
Rating Valuations Act 1998
[ Bailii ] - [ PC ]
