Category: Land

London Borough of Barnet v Barnet Football Club Holdings Ltd: CA 30 Jul 2004

An application was made for the rectification of a transfer.
Held: The fact that the contract has been negotiated by a person who is not the decision-taker and has made an error is irrelevant unless it can be shown that the decision-taker shared the intention of the negotiator; but that requires evidence. The negotiator for the Borough had made an error in the drafting of the contract, but he was not the decision-taker; those who took the decision for the Borough were not called to give evidence and it could not be inferred that they intended the Borough to contract other than in the form of the contract which the Borough executed.

Judges:

Peter Gibson, Keene, Mauric Kay LJJ

Citations:

[2004] EWCA Civ 1191

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 21 June 2022; Ref: scu.215984

Laurence v Lexcourt Holdings Ltd: ChD 1978

The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years.
Held: There had been a misrepresentation by the lessors which entitled the lessees to rescind the agreement. Dealing with an alternative plea of common mistake, the court followed Solle v Butcher and Grist v Bailey in holding that the lease could be rescinded on the ground that it had been concluded under a mistake which was fundamental. The defendant’s failure to make the search which would have disclosed the mistake did not disentitle them from relying on their mistake.

Judges:

Dillon QC

Citations:

[1978] 1 WLR 1128, [1978] 2 All ER 810

Jurisdiction:

England and Wales

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 21 June 2022; Ref: scu.185671

H M Attorney General v Hyde and others: ChD 5 Dec 2001

Land had been acquired by the trustees’ predecessors under the 1882 Act. The question was now whether it was subject to charitable trusts. Money having been received from the acquisition of the rights, a meeting had been held to determine the trusts upon which it was to be held. The express trusts were for the land to be held as common land and for part to be used for football and cricket. Much was now occupied by a football club. The people who might benefit from any private property rights could no longer be identified.
Held: The beneficiaries of the trust for use as common land for grazing are the occupiers from time to time. It was open to the Commissioners to approve a resolution for the creation of dual trust, for its use for grazing purposes by the then relevant occupiers from time to time, and for recreation. The trust so created is a charitable trust. The purpose for use as common grazing land is outdated and a cy pres scheme is to be created.

Judges:

Mr Justice Lawrence Collins

Citations:

[2001] EWHC Ch 464

Statutes:

Land Clauses Consolidation Act 1845, Commons Registration Act 1965, Commonable Rights Compensation Act 1882

Jurisdiction:

England and Wales

Citing:

Cited – Nash v Coombs 1868
The parties disputed interests in a sum of andpound;3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in . .
Lists of cited by and citing cases may be incomplete.

Charity, Land

Updated: 21 June 2022; Ref: scu.166986

Hughes v Griffin and Another: CA 1969

Possession of land is never adverse if it can be referred to a lawful title.

Judges:

Harman LJ, Russell LJ

Citations:

[1969) 1 WLR 23

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 21 June 2022; Ref: scu.267383

Ali v Lane and Another: CA 21 Nov 2006

The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extrinsic evidence, including, possibly, evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended. But is only to the extent that it is unclear that extrinsic evidence may have a place. New evidence had become available and might be admitted under Ladd as relaxed by Bubb, but even so it was not sufficient to justify a disturbance of the decision, and the appeal failed.
Carnwath L said: ‘Watcham remains good law within the narrow limits of what it decided. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.’

Judges:

Lord Justice Waller VP, Lord Justic Carnwath and Lord Justice Maurice Kay

Citations:

Times 04-Dec-2006, [2006] EWCA Civ 1532, [2007] 1 EGLR 71, [2007] 1 P and CR 26, [2007] 2 EG 126

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Supported – Watcham v Attorney-General of the East Africa Protectorate PC 1919
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .
Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
Cited – Hillman and Hillman v Rogers and Rogers CA 19-Dec-1997
The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make . .
Cited – Lord St Leonards v Ashburner 1869
(Sussex Spring Assizes) Lord St Leonards had bought some land and planted trees on what he thought was his side of the boundary. Some 20 years later Mr Ashburner bought the adjoining land and claimed that the trees were on his side of the boundary. . .
Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997
The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

Cited – Piper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
Followed – Haycocks and Another v Neville and Another CA 18-Jan-2007
. .
Followed – Bradford and Another v James and others CA 18-Jul-2008
Boundary dispute. . .
Cited – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
Cited – Cameron v Boggiano and Another CA 21-Feb-2012
The parties disputed the boundary between their neighbouring properties. . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Cited – Cattermol v Jordan and Others UTLC 27-Apr-2022
LAND REGISTRATION – BOUNDARY DISPUTES – application for a determined boundary, section 60 of the Land Registration Act 2002 – evidence – decision made on a basis not put to the parties – weight to be given to expert evidence . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 June 2022; Ref: scu.246337

Pennock and Another v Hodgson: CA 27 Jul 2010

In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the parties as to the position of the boundary. The plans did not show the boundaries with sufficient precision, and there were no measurements, and ‘this was a case in which the judge was entitled to take the plan in hand and look at the physical features of the land on the ground’. Having done that correctly the appeal must fail.
Mummery LJ summarised the combined effect of the Eastwood and Wibberly cases: ‘Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction.’

Judges:

Mummery, Longmore, Wilson LJJ

Citations:

[2010] EWCA Civ 873

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leading Authority – Alan Wibberley Building Ltd v Insley HL 24-Mar-1999
The parties disputed ownership of a strip of land between a garden and a farm. The land was registered. There was a hedge and a ditch along the disputed boundary, it had been conceded in the Court of Appeal that a conveyance of land on the hedge . .
Approved – Eastwood v Ashton HL 1915
Toi Identify Land, Court to Find True Meaning
A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Cited – Horn and Another v Phillips and Another CA 18-Dec-2003
In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. . .
Cited – Wigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
Cited – Partridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
Cited – Woolls v Powling CA 9-Mar-1999
A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
The . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .

Cited by:

Cited – Taylor v Lambert and Another CA 18-Jan-2012
The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .
Cited – Paton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .
Cited – Drake and Another v Fripp CA 3-Nov-2011
The parties disputed the location of the boundary between their properties. An appeal against the adjudicator’s award altering the filed plan.
Held: The appeal failed: ‘there was no restriction on the adjudicator’s power to direct the Land . .
Cited – In re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .
Cited – Witt v Woodhead UTLC 18-Nov-2020
No determined Boundary – Court Findings Enough
Land Registration – Boundary Disputes – Construction of Conveyance – Straight Line Boundary – usefulness of computer-generated lines – party wall – fence posts
Held: ‘It should be borne in mind that a carefully-drawn conveyance plan showing a . .
Cited – Cattermol v Jordan and Others UTLC 27-Apr-2022
LAND REGISTRATION – BOUNDARY DISPUTES – application for a determined boundary, section 60 of the Land Registration Act 2002 – evidence – decision made on a basis not put to the parties – weight to be given to expert evidence . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 June 2022; Ref: scu.421075

Cox v Schoolbred: CA 15 Nov 1878

Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that ‘people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using Shooters’-hill’.

Judges:

Jessel MR

Citations:

Times 15-Nov-1878

Jurisdiction:

England and Wales

Cited by:

Cited – Edwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 June 2022; Ref: scu.441213

Pountney v Clayton: CA 1883

Bowen LJ was asked as to rights of support to land. He said: ‘Prima facie the owner of the land has everything under the sky down to the centre of the earth.’

Judges:

Bowen LJ

Citations:

(1883) 11 QBD 820

Jurisdiction:

England and Wales

Cited by:

Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 June 2022; Ref: scu.421405

Jelbert v Davies: CA 1968

Lord Denning MR explained that even a right granted in wide terms like ‘at all times and for all purposes’ is not a sole right, if it is used in common with others, and it does not authorise unlimited use.

Judges:

Lord Denning MR

Citations:

[1968] 1 WLR 589

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 June 2022; Ref: scu.381288

Bagshaw v Buxton Local Board of Health: CA 1875

House owners requested an injunction to stop the surveyors of highways removing a low wall and railing enclosing a piece of ground in front of it. The surveyors alleged that the ground was part of a highway and that the wall and railing were an obstruction to the safe and convenient passage along it. The road opposite the house, exclusive of the piece of ground, was about 36 feet wide. The owners said that given that, the wall did not obstruct ‘the safe and convenient passage along [the] street’ referring to the type of obstruction against which the surveyors of highways could act under the 1847 Act.
Held: Jessel MR said that ‘along the street’ meant along the whole of the street: ‘[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held’

Judges:

Jessel LJ MR

Citations:

(1875-76) LR 1 Ch D 220

Statutes:

Towns Improvement Clauses Act 1847

Jurisdiction:

England and Wales

Cited by:

Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Ali v The City of Bradford Metropolitan District Council CA 17-Nov-2010
The claimant appealed against rejection of her claim for damages after slipping on a footpath maintainable by the defendant after an accumulation of mud and debris. The claim appeared to be the first under section 130, and the highway authority . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 June 2022; Ref: scu.401657

Metropolitan Railway Co v Fowler: CA 1892

Lord Esher MR said: ‘An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land..’

Judges:

Lord Esher MR

Citations:

[1892] 1 QB 165

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 June 2022; Ref: scu.381284

Robert Leonard Developments Limited v Wright: CA 23 Mar 1994

The terms expressly agreed by the parties provided for the grant of a lease and the sale of the contents of the property. There was a single agreement for the lease and the contents. The written document did not incorporate the terms as to the sale of the contents and so did not comply with section 2.
Held: Rectification of the written document was ordered so as to include the terms as to the sale of the contents, with the result that the written document as rectified did comply with section 2. Dillon LJ remarked that the availability of rectification in that case was ‘obvious’ and ‘straightforward’.

Judges:

Dillon LJ, Henry LJ

Citations:

Unreported, 23 March 1994

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Cited by:

Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Land

Updated: 18 June 2022; Ref: scu.266513

Chartbrook Ltd v Persimmon Homes Ltd: CA 12 Mar 2008

Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to Chartbrook under the contract included an ‘additional residential payment’ which was to be calculated according to a defined formula. On what Chartbrook contended, and the trial judge (Briggs J) held was the correct interpretation of the contractual formula, the amount payable to Chartbrook was some pounds 4.4m.
Held: The appeal failed.

Judges:

Tuckey, Lawrence Collins LJ, Rimer Lj

Citations:

[2008] EWCA Civ 183, [2008] 11 EG 92, [2008] 2 All ER (Comm) 387

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .

Cited by:

Appeal from – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 June 2022; Ref: scu.266154

Chartbrook Ltd v Persimmon Homes Ltd and Another: ChD 2 Mar 2007

The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under licence from the owner, would construct a mixed residential and commercial development and sell the properties on long leases. The payment which the owner was to receive was set out in schedule 6 to the agreement. A dispute arose as to the proper construction of part of the schedule.
Held: The ‘private dictionary’ exception to the general exclusion of evidence relating to parties’ pre-contractual negotiations when construing a contract is limited to cases where the word or phrase in issue is not expressly defined in the contract. There had been no common mistake, as the two directors of Chartbrook had understood both the relevant clause in the contract and a pre-contractual exchange of letters describing the ARP as having the effect for which Chartbrook contended.

Judges:

Briggs J

Citations:

[2007] EWHC 409 (Ch), [2007] 2 P and CR 9, [2007] 1 All ER (Comm) 1083, [2007] 11 EG 160

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Partenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Proforce Recruit Ltd v The Rugby Group Ltd CA 17-Feb-2006
The parties to a contract disputed the meaning of the phrase ‘preferred supplier status’ in a service cleaning agreement. The Court was asked whether an otherwise unarguable case on construction could be saved from being struck out by reference to . .
Cited – Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH HL 1982
Brinkibon, based in London wanted to buy steel from the defendants who were in Austria. They accepted Stahag’s offer by Telex to Vienna. Brinkibon wanted to sue Stahag and in order to have leave to serve out of the jurisdiction, had to establish . .
Cited – Jones v Bright Capital Ltd and others ChD 7-Dec-2006
. .

Cited by:

Appeal from – Chartbrook Ltd v Persimmon Homes Ltd CA 12-Mar-2008
Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to . .
At first instance – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 18 June 2022; Ref: scu.249889

Jackson v Bishop: CA 1979

Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground: ‘It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result.’

Judges:

Bridge LJ

Citations:

(1979) 48 P and CR 57

Jurisdiction:

England and Wales

Cited by:

Cited – Geoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 17 June 2022; Ref: scu.197725

Campbell v Campbell: HL 8 Jul 1880

Where a person who held certain lands in fee-simple under a special destination executed a general disposition of his estates in favour of a different series of heirs, held ( aff. Court of Session), in accordance with Thoms, v. Thoms, March 30, 1868, 6 Macph. 704, that, in the absence of any indication of a contrary intention, the special destination had been evacuated.

Judges:

Lord Chancellor Selborne, Lord Hatherley, and Lord Blackburn

Citations:

[1880] UKHL 807, 17 SLR 807

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 17 June 2022; Ref: scu.635635

Earl of Galloway v Dowager Countess of Galloway: HL 24 Nov 1903

In a petition presented by an heir of entail in possession for the restriction of a liferent annuity granted by his predecessor to his widow under the Entail Provisions Act 1824 (Aberdeen Act), held ( aff. judgment of the Second Division) that the petitioner was not entitled, for the purpose of calculating the amount of the annuity as allowed by the Act, to deduct from the gross rental the expenses of (1) upkeep of estate buildings and fences, and (2) management and superintendence of the estate.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley

Citations:

[1903] UKHL 90, 41 SLR 90

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 17 June 2022; Ref: scu.630582

Caledonian Railway Co v Glenboig Union Fireclay Co Ltd: HL 28 Apr 1911

‘The Court has to find what the parties must be taken to have bought and sold respectively, remembering that no definition of ‘minerals’ is attainable, the variety of meanings which the use of the word ‘minerals’ admits of being itself the source of all the difficulty. It must be taken that what the Railway Company intended to get and the landowners intended to give was the land under the line, for the object was to give, not a way leave but a support. I say this, speaking generally. Upon the other hand, if anything exceptional in use, character, or value was thereunder, that was reserved, provided it could be included under the word ‘minerals’ as understood in the vernacular of the mining world and the commercial world and the landowner.’- Per the Lord Chancellor.

Judges:

Lord Chancellor (Loreburn), Lord Macnaghten, Lord Shaw, and Lord Robson

Citations:

[1911] UKHL 526

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 17 June 2022; Ref: scu.619193

Greenock Harbour Trustees v Carmichael: HL 3 Mar 1910

The Greenock Harbour Act 1880, sec. 70, enacts-‘Every application for a judicial factor under the provisions of this Act shall be made to the Sheriff, and on any such application the Sheriff may, by order in writing, after hearing the parties, appoint some person to receive the whole, or a competent part of the rates and duties and other revenues of the trust until all the arrears of interest or of principal, as the case may be, . . be fully paid.’
Held (aff. judgment of the Court of Session) that a judicial factor so appointed had no power at his own hand to raise the rates, his only power being to receive them when collected, and to apply the funds so received.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, and Lord Atkinson

Citations:

[1910] UKHL 352, 47 SLR 352

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 17 June 2022; Ref: scu.619780

Post Office v Nottingham Council: CA 1976

The court provided a definition of what is a hereditament. Browne LJ said: ‘the question is whether the building as a building is so far completed as to be capable of occupation or ready for occupation for the purposes for which it is intended – as a house, shop, office, factory or, in this case, a telephone exchange.’ and ‘I think the test is: as a matter of fact and degree, is, or will the building, as a building, be ready for occupation, or capable of occupation, for the purpose for which it is intended?’

Judges:

Browne LJ

Citations:

[1976] 1 WLR 624

Jurisdiction:

England and Wales

Cited by:

Cited – Wilson v Josephine Coll (Listing Officer) Admn 13-Oct-2011
The land owners challenged the re-appearance of their empty and disrepaired dweliinghouse in the valuation list. It had been exempt for twelve months. The appellanat said that the appeal property was not a hereditament as it was not in reasonable . .
Lists of cited by and citing cases may be incomplete.

Rating, Land

Updated: 17 June 2022; Ref: scu.545146

In Re Banister; Broad v Munton: CA 1879

Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective.
Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure.
Fry J said: ‘It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser.’
Jessel MR said: ‘in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division.’
Cotton LJ said: ‘but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting.’

Judges:

Fry J, Je ssel MR , LJ Cotton

Citations:

(1879) 12 ChD 131

Jurisdiction:

England and Wales

Cited by:

Cited – Area Estates Ltd v Weir CA 20-Jul-2010
The parties contracted for the sale and purchase of land with vacant possession. It was subject to a lease which the seller said had been surrendered, and it refused to accept any requisitions of objections. After exchange it appeared that the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 17 June 2022; Ref: scu.420980

Porter v Secretary of State for Transport: CA 1996

Land had been compulsorily acquired for a road. The plaintiff was granted on appeal under section 18 of the 1961 Act a certificate of appropriate alternative development in respect of the land acquired, namely that the land acquired would have been suitable for residential development.
Held: On a valuation on a compulsory purchase of land, the value is not dependent on findings on probabilities or even that ‘it could reasonably have been expected that planning permission would be granted’.
Stuart Smith LJ set out the four elements for an issue estoppel: ‘It is common ground that four matters have to be established if there is to be an issue estoppel. ‘(1) The issue in question must have been decided by a court or tribunal of competent jurisdiction.
(2) The issue must be one which arises between parties who are parties to the decision. This also is accepted.
(3) The issue must have been decided finally and must be of a type to which an issue estoppel can apply.
(4) The issue in respect of which the estoppel is said to operate must be the same as that previously decided.’ and ‘Where a court or tribunal has to decide what would have happened in a hypothetical situation which does not exist, it usually has to approach the matter on the basis of assessing what were the chances or prospect of it happening. The chance may be almost a certainty at one end to a mere speculative hope at the other. The value will depend on how good this chance is. Where, however, the court or tribunal has to decide what in fact has happened as an historical fact, it does so on balance of probability; and once it decides that it is more probable than not, then the fact is found and is established as a certainty. This distinction is well illustrated by Davies v Taylor [1972] 3 All ER 836, [1974] AC 207 and Allied Maples Group Ltd v Simmons and Simmons (a firm) [1995] 4 All ER 907, [1995] 1 WLR 1602.,br />It would be unnecessary for the Secretary of State to evaluate the chance of the eastern route being the preferred alternative route in the event that the actual route was not chosen, provided it was more than 50%; but the Lands Tribunal would be concerned in assessing value to evaluate the chances of this happening more precisely.’

Judges:

Stuart Smith LJ

Citations:

[1996] 3 All ER 693

Statutes:

Compulsory Purchase Act 1965

Jurisdiction:

England and Wales

Citing:

Appeal from – Porter v Secretary of State for Transport LT 1995
A positive section 17 (or section 18) certificate has been issued on the basis that the relevant land would be developed, or could only be developed, in conjunction with other land in the vicinity. It was argued that no assumption arose as a matter . .

Cited by:

Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Estoppel

Updated: 17 June 2022; Ref: scu.372588

Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd: ChD 8 Feb 2007

The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the right, bearing the context in mind, including the significant power of the dominant owner to prevent a development to demand some part of the likely profit. In the absence of evidence of the size of any profit, the court could use a multiplier.

Judges:

Gabriel Moss QC

Citations:

[2007] EWHC 212 (Ch), Times 14-Feb-2007

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd ChD 4-Sep-2006
Dispute as to right of light – proposed development likely to breach right for dominant tenement. . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Amec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
Cited – Liverpool and Lancashire Properties Limited and Another v Lunn Poly Ltd and Another CA 15-Mar-2006
Where a tenant successfully obtained relief from forfeiture, and compensatory damages were payable under the 1858 Act in lieu of an injunction, and had assigned the lease for a profit the court could exceptionally use its equitable jurisdiction to . .

Cited by:

See Also – Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd ChD 9-Mar-2007
Dispute over right to light.
Gabriel Moss QC HHJ said: ‘I would deduce the following principles from these cases in relation to the assessment of damages for loss of the ability to prevent an infringement of a right to light at the point just . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 17 June 2022; Ref: scu.250597

Corporation of London v Riggs: CA 1880

The court considered whether a right of way of necessity had been granted: ‘the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the grantor to enable him to get to the reserved, or excepted, or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then that state. There is no distinct authority on the question. It seems to me to have been laid down in very early times that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserve close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, all where the close is reserved, as it is here, as a re-grant.’
He went on to consider what the necessity of the case required, saying ‘the object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use not occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is.
I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided.’

Judges:

Jessel MR

Citations:

(1880) 13 Ch D 798

Jurisdiction:

England and Wales

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 June 2022; Ref: scu.188815

Pretto And Others v Italy: ECHR 8 Dec 1983

The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.’

Citations:

[1983] ECHR 15, (1983) 6 EHRR 182, 7984/77, (1984) 6 EHRR 182

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 16 June 2022; Ref: scu.164927

Guinness Trust (London Fund) v Green: 1955

Terms used in older documents could be re-interpreted to accord with current usage.

Citations:

[1955] 1 WLR 872

Jurisdiction:

England and Wales

Cited by:

Cited – Dano Ltd v Earl Cadogan and others ChD 21-Feb-2003
A conveyance contained a covenant from 1929 restricting use of the land to the provision of housing for ‘the working classes.’ The land owner sought a declaration that the covenant was no longer enforceable on the grounds of vagueness.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 June 2022; Ref: scu.180093

Representative Body of the Church in Wales v Tithe Redemption Commission: HL 1944

The issue, arising from the disestablishment of the Welsh Church, was whether tithe rent charges temporally vested in the Welsh Commissioners pending their transfer to the University of Wales while temporarily vested, subjected the Welsh Commissioners to chancel repair liability. If so, Government stock needed to be issued to the appropriate Welsh authority pursuant to the Tithe Act 1936. Held The Welsh Commissioners, so long as they held the tithe rent-charges, were lay impropriators and accordingly under a chancel repair liability. Tithe rent charges representing rectorial property of the parish, were held by the Dean and Chapter of Gloucester. Other tithe rent-charges were held by a limited company. Plymouth Estates Ltd plainly and admittedly remain liable for chancel repair. The obligation of a rector to repair the chancel was ‘an obligation imposed by common law’. If the tithe rent charge gets into the hands of a lay impropriator at anytime it is held subject to the liability to repair’ and ‘impropriation exists where the property is in lay hands.’

Judges:

Viscount Simon LC, Lord Wright, Lord Porter

Citations:

[1944] AC 228

Jurisdiction:

England and Wales

Cited by:

Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Land

Updated: 16 June 2022; Ref: scu.184048

William Dixon (Ltd) v Caledonian Railway Co and Glasgow and South-Western Railway Co: HL 12 Jul 1880

Held (aff. judgment of the Court of Session) that under the 71st section of the Railway Clauses Act 1845 (8 and 9 Vict. c. 33) a railway company that has received notice from an owner or lessee of minerals under a railway of his intention to work them, and has not within thirty days thereafter given notice of a desire that they should remain unworked, is not thereby barred from giving such notice subsequently when the workings seem likely to become dangerous to the line of railway.

Judges:

Lord Chancellor Selborne, Lord Blackburn, and Lord Watson

Citations:

[1880] UKHL 816, 17 SLR 816

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 14 June 2022; Ref: scu.635636

The Lord Advocate v Lord Lovat: HL 27 Feb 1880

L had a barony title to the lands on both sides of a river, dating from 1774, and also express grants of salmon-fishing of a much earlier date to certain parts of the river situated below the falls of K. He had from time immemorial exercised a full and exclusive right of fishing below these falls, inter alia, by means of close cruives, which caught almost all the salmon ascending the river. In consequence of the cruives and the falls, the fishing above the falls was, up to 1862, when close cruives were abolished, almost worthless. L had asserted his right above the falls for a prescriptive period (1) by protecting the river during the spawning season; (2) by exercising the right of fishing occasionally; (3) by taking his tenants bound to protect the water; (4) by preventing others from fishing. Since 1862 he had fished regularly above the falls. It was not alleged that any other party had possessed the right of fishing. Held ( affirming Court of Session), in an action at the instance of the Crown, who claimed the fishings above the falls, that apart from the question of express grant, L was entitled to attribute his possession of the whole river to the barony title, and that under it the possession which had been had from the highest portion of the stream down to the sea had been one and continuous, and sufficient to maintain L’s rights within the limits of the barony lands.

Judges:

Lord Chancellor (Cairns), Lord O’Hagan, and Lord Blackburn

Citations:

[1880] UKHL 421, 17 SLR 421

Links:

Bailii

Jurisdiction:

England and Wales

Land, Agriculture

Updated: 14 June 2022; Ref: scu.635628

Signature of St Albans (Property) Guernsey Ltd v Wragg and Others: UTLC 4 Mar 2019

RESTRICTIVE COVENANTS – modification – covenants restricting development, use and density to three detached private dwellings – modification sought to permit 83-bed care home – application dismissed – grounds (aa) and (c), s.84(1), Law of Property Act 1925

Citations:

[2019] UKUT 70 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 14 June 2022; Ref: scu.635206

Mobil Oil Co Ltd v Birmingham City Council: ChD 5 May 2000

An area of land was to be used as a petrol filling station. Part was later to become part of a widened roadway, and that part was let and the remainder sold as freehold. The freehold land had no access to the highway save over the leasehold land. The land sale included an agreement later to grant necessary rights on development. The development was abandoned. On a renewal of the lease, the tenant claimed that the value was affected by the easement. It was held that no sufficient certainty existed to create an easement.

Citations:

Gazette 05-May-2000

Jurisdiction:

England and Wales

Land

Updated: 14 June 2022; Ref: scu.83778

M’Donalds v M’Donald: HL 12 Mar 1880

In valuing the ‘expectancy or interest’ of the second and third substitute heirs of entail in an entailed estate, under sec. 5 of the Entail Amendment Act 1875- Held (rev. judgment of Second Division of Court of Session) that seeing that the Legislature has laid down no rule for the valuation of such ‘expectancy or interest,’ any facts relating to the probable duration of life of the first substitute heir of entail may be inquired into, and that ailments such as are calculated to shorten life must be relevant to such an issue.
Held (also rev. judgment of Court of Session) that the chances of the second and third heirs of entail succeeding to the estates in fee-simple were elements to be considered in a valuation of their respective ‘expectancies or interests.’

Judges:

Lord Chancellor (Cairns), Lord Hatherley, and Lord Blackburn

Citations:

[1880] UKHL 503, 17 SLR 503

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 14 June 2022; Ref: scu.635631

Smith v Police Commissioners of Denny: HL 8 Mar 1880

The proprietor of certain lands on which there existed a well used by the inhabitants of an adjoining village for the prescriptive period, applied for interdict against the local authority constituted under the Public Health (Scotland) Act 1867, sec. 89, who had cleaned and enclosed the well, so as to protect it against alleged pollution by drainage. Held (1) that the facts proved had established prima facie a possessory right on the part of the public; (2) that the local authority as such had a locus standi to vindicate the rights of the community, represented by them, to the effect in question.

Judges:

Lord Hatherley, Lord O’Hagan, and Lord Blackburn

Citations:

[1880] UKHL 517, 17 SLR 517

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 14 June 2022; Ref: scu.635632

Brownlie v Miller and Others: HL 10 Jun 1880

Held that a clause of warrandice in the usual terms did not give a purchaser who had bought an estate on the understanding that it was held of the Crown, and was therefore not open to a claim of composition upon entry, recourse against the sellers for the amount of the composition paid by him to a mid-superior of whom the lands turned out to be held.
Held that in the circumstances above stated, the titles of the estate having been produced, and the agent for the sellers not being bound to make any mention that a claim for composition, believed by him to be unfounded, had been made, there was no ground for an action to recover the amount of the composition paid in respect of fraud or concealment.

Judges:

Lord Chancellor Selborne, Lord Hatherley, Lord Blackburn, and Lord Watson

Citations:

[1880] UKHL 805, 17 SLR 805

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 14 June 2022; Ref: scu.635633

Wallace-Jambs v Montgomerie and Co Ltd: HL 18 Dec 1903

Evidence in an action by an individual burgess for interdict against interfering with certain lands belonging to the burgh, upon which held ( rev. unanimous judgment of the First Division, which had affirmed the interlocutor of the Lord Ordinary, Kincairney) that the complainer had failed to prove that the piece of ground in question had from time immemorial been appropriated to the use and enjoyment of the

Judges:

Lord Chancellor (Halsbury), Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley

Citations:

[1903] UKHL 137, 41 SLR 137

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 13 June 2022; Ref: scu.630585

Forbes v Wokingham Borough Council: Admn 4 Oct 2018

Renewed application for permission to apply for judicial review following refusal on the papers rejecting the claimant’s application to register land in Wokingham as a new town or village green pursuant to section 15(3) of the Commons Act 2006. The interested party is the owner of the land.

Citations:

[2018] EWHC 2530 (Admin)

Links:

Bailii

Statutes:

Commons Act 2006 15(3)

Jurisdiction:

England and Wales

Land

Updated: 13 June 2022; Ref: scu.625904

Price, Price v Bartlett-Ward, Petrides, Saunders, Ward: FTTPC 2 Jul 2018

The disputed land, which had been unregistered until 2010 but was admittedly within the paper title which the Respondents first registered in 2010, comprised a steep bank down from a lawn to a field. It had been enclosed within the Applicant lawn owners’ land since 1980 at least. It was so enclosed by a scrappy post and wire fence erected by the Respondents at the bottom of the bank beyond which (in the field) was a large thicket of brambles beyond which the Respondents’ tenants had erected another stock-proof fence. The Applicants had not done much on the land apart from tip grass cuttings on it and otherwise keep it clear of brambles coming in from the field. However, in 2009 they had erected a new close boarded fence having become fed up with incursions into their garden by the Respondents’ tenant’s horses. At that time they had referred in correspondence with the Respondents to the fence as belonging to them and had sought compensation for the damage to it. The Respondents had not reacted to that or the erection of the fence. A surveyor who had been instructed to report on incursions onto the Respondents’ fields in 2001/2 had said that he thought that any attempt to move the boundary fence to the top of the bank by the Respondents would be met with a claim of adverse possession by the Applicants.
Held: Even though the ‘acts of possession’ relied upon by the Applicants were minimal they had been in effective physical control of the disputed land since their purchase in 1980 with the necessary intention as evidenced by: their use of the land, including particularly keeping it clear of brambles; the surveyor’s report; the erection of the fence; and the lack of reaction by the Respondents to that. That claim of adverse possession constituted an interest to which the Respondents’ first registration was subject for the purposes of s. 11(4)(b) or (c) and Schedule 1 Land Registration Act 2002 and the Respondents’ Title Plan ought to be altered accordingly.

Citations:

[2018] UKFTT 501 (PC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 June 2022; Ref: scu.623847

Sussex Caravan Parks Ltd v Richardson: CA 1961

Harman LJ described the Watcham case: ‘a case which has been long under suspicion of the gravest kind from real property lawyers.’

Judges:

Harman LJ

Citations:

[1961] 1 WLR 561

Jurisdiction:

England and Wales

Citing:

Doubted – Watcham v Attorney-General of the East Africa Protectorate PC 1919
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .

Cited by:

Cited – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 June 2022; Ref: scu.247519

Bogie Trading As Oakbank Services v The Forestry Commission: SCS 23 Nov 2001

The pursuer sought declarator that he had a valid option to purchase an area of ground extending to 24 hectares or thereby together with a servitude right of access thereto, and that the defenders were bound and obliged by the terms and conditions thereof.

Judges:

Lord MacFadyen

Citations:

[2001] ScotCS 267, 2002 SCLR 278

Links:

Bailii

Scotland, Contract, Land

Updated: 13 June 2022; Ref: scu.202224

Gregory and Another, Regina (on the Application Of) v Turner and Another: CA 7 Dec 2001

Application for leave to appeal.

Citations:

[2001] EWCA Civ 1952

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Application for leave – Gregory and Gregory v Turner, Turner; Regina (Morris) v North Somerset Council CA 19-Feb-2003
The parties were involved in a boundary dispute. One granted an enduring power of attorney, and sought to appear as a litigant in person through the power.
Held: The right of a litigant in person to represent himself was a personal right, and . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 13 June 2022; Ref: scu.201556

Heywood v Hey: CA 18 Jul 2001

An order for the sale of the former family home had been made, and the sale completed, the transfer being executed by the judge. The mother now applied for leave to appeal.
Held: There was no important point of law or practice, nor any other compelling reason to grant permission and that application is refused.

Judges:

Thorpe LJ

Citations:

[2001] EWCA Civ 1333

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 June 2022; Ref: scu.201249

Grossman v Hooper: CA 11 Apr 2001

The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. He argued that it did not include a relevant term, and was therefore not effective.
Held: The appeal failed. The court should be wary of artificially dividing up what is in truth a composite transaction. Sir Christopher Staughton doubted the observation in Tootal saying: ‘I am by no means sure of that. If the parties are allowed by a simple device to avoid the effects of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, what was the point of Parliament enacting it?’

Judges:

Chadwick LJ, Sir Christopher Staughton doubted the observation in

Citations:

[2001] EWCA Civ 615, [2001] 2 EGLR 82, [2001] 3 FCR 662, [2001] 27 EG 135

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible that a contract which was . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 June 2022; Ref: scu.200973

Shah v Shah and others: CA 7 Mar 2001

Renewed application for permission to appeal – whether deed validly signed.

Citations:

[2001] EWCA Civ 493

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989

Jurisdiction:

England and Wales

Cited by:

Leave given – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Lists of cited by and citing cases may be incomplete.

Contract, Estoppel, Land

Updated: 11 June 2022; Ref: scu.200929

Rankin and Others (Rankin’s Trustees) v Lamont: HL 27 Feb 1880

Where trustees became infeft in certain heritable property in terms of a trust-disposition and settlement in their favour under which they were to entail the property upon the truster’s heirs, Held ( affirming the Court of Session) that under the Conveyancing (Scotland) Act 1874 the superior was entitled to the composition payable by a singular successor, and that the heir of the last entered vassal could not now be tendered for an entry.
The 4th sub-section of section 2 of the Conveyancing (Scotland) Act 1874 provides that the implied entry with the superior which is provided for by that Act in all cases where a party becomes infeft, ‘shall not en title any superior to demand any casualty sooner than he could by the law prior to this new Act or by the conditions of the feuright have required the vassal to enter or to pay such casualty irrespective of his entering.’

Judges:

Lord Chancellor (Cairns), Lord O’Hagan, and Lord Blackburn

Citations:

[1880] UKHL 416, 17 SLR 416

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 11 June 2022; Ref: scu.635629

Rhondda Urban District Council v Taff Yale Railway Co: HL 1 Apr 1909

The Railways Clauses Consolidation Act 1845 provides, by section 51, as to roads crossing a railway by bridges, that where a bridge has been built to the original width of the road but not up to the maximum prescribed by the Act, when the road is subsequently widened the railway is bound to widen the bridge.
Held that the liability of the railway company under the section extended only to the bridge actually intersecting the railway line and not to the approaches thereto.

Judges:

Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne and Macnaghten

Citations:

[1909] UKHL 1037, 46 SLR 1037

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Land

Updated: 11 June 2022; Ref: scu.620577

In re Webb’s Lease, Sandom v Webb: CA 1951

The court considered the acquisition of right of way of necessity. Evershed MR said: ‘If by this language Salter J intended to lay it down that in a case such as this (where it is or may be reasonable for the court to assume that, if the parties had applied to their minds to the problem of the advertisements, they would or should have made provision for securing to the landlord such right as he now claims) it is sufficient for the landlord to establish the absence of any evidence of a contrary intention, it seems to me that the proposition is in direct conflict with the principle, which is not only well established but which also, in my judgment, ought not to be lightly qualified, the principle that it is the duty of a grantor to reserve expressly any right he wishes to maintain against his grantee or at least to prove affirmatively that such a reservation was clearly intended by him and his grantee at the time of the grant.’
Jenkins LJ referred to the Pwllbach Colliery case and said: ‘I find myself unable to agree with the judge’s conclusion. The question is whether the circumstances of the case as proved in evidence are such as to raise a necessary inference that the common intention of the parties was to reserve to the landlord . . some, and if so what, rights in regard to the display of advertisements, or such as to preclude the tenant from denying the implied reservation to the landlord of some such rights consistently with good faith. That question must be approached with the following principles in mind: (i) if the landlord intended to reserve any such rights over the demised premises it was his duty to reserve them expressly
(ii) the landlord having failed in this duty, the onus was upon him to establish the facts to prove, and prove clearly, that his case was an exception to the rule
(iii) the mere fact that the tenant knew at the date of the lease that the landlord was using the outer walls of the demised premises for the display of the advertisements in question did not suffice to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended to claim, or to take the case out of the general rule.’

Judges:

Lord Evershed MR, Jenkins LJ

Citations:

[1951] 1 Ch 808

Jurisdiction:

England and Wales

Citing:

Cited – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 June 2022; Ref: scu.253280

Hobson v Gorringe: CA 1897

The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: ‘the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil.’

Judges:

Blackburn J

Citations:

[1897] 1 Ch 182

Jurisdiction:

England and Wales

Cited by:

Approved – Reynolds v Ashby and Son HL 1904
Machines had been affixed to the premises. The court was asked whether they were caught by a fixed charge over the company’s land and fixed assets.
Held: The machines were fixed by bolts only and no damage would be caused to the building by . .
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Cited – Dalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 June 2022; Ref: scu.240414

Martin v David Wilson Homes Ltd: CA 28 Jun 2004

The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use.
Held: Buxton LJ said that: ‘I do not think that the expression ‘a’ does carry any necessary implication of singularity. ‘A’ is an article, not a number. When, as here, one is concerned with how any particular building shall be used, a natural way of expressing that is ‘use as a private dwellinghouse.’
He went on to say ‘One has to remember, when looking at issues about the factual matrix, that although reference for that matrix is not limited to cases where the words are clearly ambiguous, the first place where one expects to find the meaning of the words and the intention of the draftsmen is in the words themselves. If they yield a fairly clear conclusion . . then one has to pause long before concluding that at that point the draftsman has used words with a meaning do not fit in with the objective he was seeking to attain.’

Judges:

Buxton LJ, Arden LJ

Citations:

[2004] EWCA Civ 1027, [2004] EGLR 77, A3/2004/0881

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Endricks’ Conveyance ChD 1973
Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity. . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Dobbs v Linford CA 1953
The tenant had entered into a covenant: ‘not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing . .
Cited – Briggs v McCusker 1996
Where one of the plots subject to a building scheme had been sub-divided, the benefit of the covenant in the scheme which originally burdened the whole plot did not pass to the owner of one of the subdivided plots so as to enable that owner to . .

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Fitzroy Robinson Ltd v Mentmore Towers Ltd TCC 7-Jul-2009
. .
Cited – Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd (Prelinary Issues) TCC 13-Jun-2008
. .
Approved – Jani-King (GB) Ltd v Pula Enterprises Ltd and others QBD 23-Oct-2007
. .
Cited – Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd TCC 7-Feb-2008
. .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another CA 22-Oct-2009
The defendant company had contracted to carry out works for the claimant. In fact the claimant did not ask the defendant to do the work but carried it out itself. When sued for damages the defendant claimed that the claimant’s conduct amounted to a . .
Applied – Legal and General Assurance Society Ltd, Regina (on the Application of) v Rushmoor Borough Council Pillar (Farnborough) Ltd Admn 9-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 June 2022; Ref: scu.199983

Nationwide Building Society v Walter D Allan Ltd: ScS 4 Aug 2004

Lady Smith said that she could not conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access.

Judges:

Lady Smith

Citations:

[2004] ScotCS 198, 2004 GWD 25-539

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 June 2022; Ref: scu.199850

Regina (on the Application of P Richards and G Richards) v Pembrokeshire County Council: CA 29 Jul 2004

Challenge to parking regulations.
Held: The appeal succeeded. In assessing the decision it was open to the court to consider and elucidate the reasoning behind the option of the parking scheme. Assuming that the 1975 Order was valid, the reasons for adopting the Directions were not reasons significantly concerned with the operation or management of the harbour, and insofar as the Directions affected Castle Terrace directly, no, or at any rate no proper, consideration was given to the fact that the adoption of the Directions might invade a property right of the appellants without adequate justification and without compensation.

Judges:

Lord Justice Sedley P, Lord Justice Neuberger

Citations:

[2004] EWCA Civ 1000

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – Richards and Another, Regina (on the Application of) v Pembrokeshire County Council CA 8-Jun-2004
Unlawfulness of parking regulations . .

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v The Independent Reviewer of Advertising Standards Authority Adjudications Admn 10-Nov-2014
The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Land

Updated: 11 June 2022; Ref: scu.199735

Jarvis Homes Ltd v Marshall and Another: CA 6 Jul 2004

An intended new road was going to be the access way for 12 new houses. Part of a restrictive covenant provided that the covenantors and their successors would not ‘use or permit or suffer to be used the land hereby conveyed or any part thereof or any building or erection now or at any time hereafter erected thereon for any trade business or manufacture but will use the same as a private residence only.’
Held: The words ‘the same’ referred not just to any building on the land but to the whole composite noun clause, meaning the land and all parts of it as well as any building on it. So construed, the covenant operated to prohibit the use of the land as the access way to another part of the development on adjoining land. A dwellinghouse is a narrower concept than residence.

Judges:

Thorpe LJ, Rix LJ, neuberger LJ

Citations:

[2004] EWCA Civ 839, [2004] 3 EGLR 81

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rolls v Miller CA 1884
The court was asked as to the effect of a restrictive covenant requiring a house not to be used for trade or business. Lindley LJ said that the dictionary meanings of the term ‘business’ embrace ‘almost anything which is an occupation, as . .
Cited – Co-Operative Retail Services Ltd v Tesco Stores Ltd CA 20-Jan-1998
A covenant against the use of land for ‘the purpose of food retailing’ was not breached by the use of the land for associated landscaping without which immediately adjoining land could not have been used for food retailing. . .
Cited – Elliott v Safeway Stores plc 1995
Proposed use of land would be in breach of covenant when it was put to a use which was ancillary to the use of adjoining land.
Held: The allegation failed. There would only have been a breach if the land in question had been used for the . .
Cited – Mander v Falcke 1891
A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged. . .

Cited by:

Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 June 2022; Ref: scu.198849

Yorkshire Bank Plc v Tinsley: CA 25 Jun 2004

The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced the earlier ones inherited that defect.
Held: The last mortgage was inseparably connected with the earlier mortgages and there was nothing to render the past abuse, which amounted to undue influence, and of which the Bank had constructive notice, inoperative in connection with the last mortgage. As a result, the mere fact that there was no new and additional inequity in relation to the 1994 mortgage was not determinative, for the inequity of the earlier transactions had not been cured.

Judges:

Lord Justice Peter Gibson Lord Justice Rix Lord Justice Longmore

Citations:

[2004] EWCA Civ 816, Times 12-Aug-2004, [2004] 3 All ER 463, [2004] 1 WLR 2380

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
Cited – Crowe v Ballard 1790
Crowe was the expectant heir to a legacy with a life tenant and in 1777 asked Ballard to sell his expectancy on his behalf. Ballard claimed to have sold to Toft for andpound;350, but had in fact bought the expectancy himself and advanced . .
Cited – UCB Corporate Services Limited v Williams CA 2-May-2002
The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to . .
Cited – Kempson v Ashbee CA 1874
Ashbee lent money to Sladden (the stepfather) in 1857 taking a promissory note from Miss Kempson, the stepdaughter, to repay andpound;450 with interest. Miss Kempson was 20 at the time and living with Sladden and her mother; she had initially . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Land, Undue Influence

Updated: 11 June 2022; Ref: scu.198408

Faraday v Carmarthenshire County Council: CA 10 May 2004

The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed the claimant to earn money elsewhere.

Citations:

[2004] EWCA Civ 649

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Director of Buildings and Lands v Shun Fung Ironworks Ltd PC 20-Feb-1995
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the . .
See also – Faraday v Carmarthenshire County Council (Formerly Llanelli Borough Council) CA 1-May-1997
. .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Appeal from – Faraday v Carmarthanshire County Council LT 20-Oct-2003
LT TAX – corporation tax – market value in June 1988 – backland formerly part of petrol filling station – likely grant of planning permission for housing – access – comparables – value determined at . .

Cited by:

See also – Faraday v Carmarthenshire County Council (Formerly Llanelli Borough Council) CA 1-May-1997
. .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 11 June 2022; Ref: scu.197962