Business Environment Bow Lane Ltd v Deanwater Estates Ltd: CA 27 Jun 2007

Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be applied with caution if not the suspicion to which Lord Moulton referred in Heilbut Symons v Buckleton [1913] AC 30 , 47. Thus, if the promise said to be binding as a collateral contract is in truth one of the terms for the sale or other disposition of land it will be unenforceable unless it is contained in the written contract required by s.2 Law of Property (Miscellaneous Provisions) Act 1989 . It must also be recognised that such a promise may be binding on successors in title of both parties without the need for notice or registration as a Land Charge or in the Land Registry, cf Brikom Investments v Carr [1979] 1 QB 467 . In that case Lord Denning considered (p.484) that conveyancers could look after themselves. But he gave no indication of how they could protect their clients from variations to the terms of a document forming part of their title to land of which they did not and could not know.
Counsel for the Lessor did not rely on s.2 Law of Property (Miscellaneous Provisions) Act 1989 but he did emphasise the need for certainty in conveyancing transactions generally. I agree with him. I would go further. In a normal conveyancing transaction in a commercial context with both parties represented by experienced solicitors the usual course of dealing is to ensure that all agreed terms are put into the contract and conveyance, transfer or lease. Accordingly those who assert a collateral contract in relation to a term not so contained must show that it was intended to have contractual effect separate from the normal conveyancing documents. Otherwise it will be invalidated by s.2 Law of Property (Miscellaneous Provisions) Act 1989 even if evidence as to its existence is admitted.’
Sir Andrew Morritt C
[2007] EWCA Civ 622, (2007) 32 EG 90, [2007] L and TR 26, [2007] 2 EGLR 51
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
See AlsoBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd TCC 31-Jul-2008
The court considered liability under a repairing covenant at the termination of a lease. . .
See AlsoBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
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CitedNorth Eastern Properties Ltd v Coleman and Another ChD 20-Aug-2009
The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and . .
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CitedRock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.253741