Category: Land

Williams, Re Leazes Terrace: UTLC 23 Aug 2017

UTLC RESTRICTIVE COVENANTS – discharge – modification – proposed development of chalet bungalow on garden land surrounded by houses – whether reasonable user – whether practical benefits of substantial value or advantage – whether exceptional disruption likely due to construction works – application refused – section 84(1)(aa) and (c) Law of Property Act 1925 .

Citations:

[2017] UKUT 341 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(aa)

Jurisdiction:

England and Wales

Land

Updated: 29 March 2022; Ref: scu.593591

The Croft (Bickershaw) Ltd: UTLC 29 Aug 2017

UTLC RESTRICTIVE COVENANT- modification – preliminary issue under s84(3A) – whether right to benefit had been lost as a result of transfer of that part of benefited land most likely to benefit – relevant conveyances not before the Tribunal – Objector admitted to object but decision as to entitlement left to final hearing

Citations:

[2017] UKUT 339 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(3)(a)

Jurisdiction:

England and Wales

Land

Updated: 29 March 2022; Ref: scu.593590

In Re Beetham, Ex parte Broderick: QBD 1886

The Court considered whether certain facts were sufficient to establish an equitable mortgage by deposit of title deeds. Cave J said: ‘The law on the subject . . forms a branch of the equitable doctrine of the specific performance of oral contracts relating to land based on part performance. It has been held that there is an inference from the mere deposit of title deeds that it was intended to give an interest in the land, and in that way there is something more than a mere oral contract, something in the nature of part performance, so as to take the case out of the Statute of Frauds.’

Judges:

Cave, Wallis JJ

Citations:

(1886) 18 QBD 380

Jurisdiction:

England and Wales

Cited by:

Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 29 March 2022; Ref: scu.434817

Behic and Others v Northumberland County Council, Re Station Street, Blyth: UTLC 23 Jun 2017

UTLC COMPENSATION – Compulsory Purchase – Acquisition of land and premises in connection with town centre redevelopment scheme – valuation – disturbance – business extinguishment – Land Compensation Act 1961 section 5 rules (2) and (6) – Compensation determined at pounds 201,073

Citations:

[2017] UKUT 269 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961 5

Jurisdiction:

England and Wales

Citing:

See Also – Behic and Others v Northumberland County Council, Re Station Street, Blyth UTLC 4-Aug-2017
UTLC COMPENSATION – Compulsory Purchase – Acquisition of land and premises in connection with town centre redevelopment scheme – valuation – disturbance – business extinguishment – Land Compensation Act 1961 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 28 March 2022; Ref: scu.591393

Boland v Welsh Development Agency: LT 18 Mar 2005

COMPENSATION – compulsory acquisition – valuation – cleared site – planning permissions for housing association development and for elderly persons units – value of land – claim for loss of profit from prospective development – held compensation payable for value of land only – compensation pounds 145,815.36

Citations:

[2005] EWLands ACQ – 9 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Boland v Welsh Development Agency CA 25-Jul-2005
Application for leave to appeal award of compensation by Lands Tribunal. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 March 2022; Ref: scu.225838

Ramzan v Agra Ltd; Ramzan v Brookwide Limited: Misc 4 Apr 2008

(Birmingham County Court) The parties disputed ownership of a room between their adjoining properties, which incuded a flying freehold. The defendant was said to have broken through into the room, and then blocked off the previous door into the claimant’s restaurant premises.
Held: The Defendant, Brookwide Ltd, was liable to the Claimant in damages for the continuing (and continuous) infringement of his rights to enjoy the use of the room after acquiring the beneficial interest in it from the trustee in bankruptcy of his father. The court also considered awarding exemplary and other damages. The court ordered the case to be transferred to the High Court for further consideration.

Judges:

Geraldine Andrews QC J

Citations:

[2010] EW Misc 13 (EWCC)

Links:

Bailii

Statutes:

County Courts Act 1984 42(2)

Jurisdiction:

England and Wales

Citing:

Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .

Cited by:

Transferred from – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
At County Court – Ramzan v Brookwide Ltd (Ancillary Matters) CA 19-Aug-2011
Costs award after principal judgment . .
At County Court – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 27 March 2022; Ref: scu.426713

Jones and Another v Oven and Another: ChD 28 Jun 2017

Dispute between neighbours concerning a strip of land, some 4 metres wide, which was part of a parcel of land sold and transferred by the claimants in 2003 to the defendants’ predecessors in title for the purposes of residential development.

Judges:

Matthews HHJ

Citations:

[2017] EWHC 1647 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 27 March 2022; Ref: scu.589946

Singh v The City of Cardiff Council: QBD 23 Jun 2017

The clamant sought damages ahving been injured falling from a footbridge.
Held: ‘The injuries were not caused by any failure to maintain the highway and the claimant’s claim under the 1980 Act fails. The claimant’s injuries were not the result of any failure by the defendant to take reasonable care to ensure that he was reasonably safe in using the land adjacent to the footpath and there was no breach of the duty imposed by section 2 of the 1958 Act. The defendant is not liable at common law for any negligence in relation to the injuries that the claimant sustained. For those reasons, the claim does not succeed.’

Judges:

Lewis J

Citations:

[2017] EWHC 1499 (QB)

Links:

Bailii

Statutes:

Occupier’s Liability Act 1957 2, Highways Act 1980 41

Jurisdiction:

England and Wales

Personal Injury, Land

Updated: 27 March 2022; Ref: scu.589915

James Hall and Company (Property) Ltd v Maughan and Others, Re The Aclet (Restrictive Covenants): UTLC 8 Jun 2017

RESTRICTIVE COVENANTS – Discharge – pub on housing estate – restriction on use to hotelier and licensed victualler – objectors seeking to keep pub open – possibility of pub closing – held that the restriction does not secure practical benefits to the objectors – Tribunal’s discretion to modify – application allowed – Law of Property Act 1925 s84(1)(aa)

Citations:

[2017] UKUT 240 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(aa)

Jurisdiction:

England and Wales

Land

Updated: 27 March 2022; Ref: scu.588174

Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd: SC 6 Nov 2020

The correct approach to the ‘public interest’ requirement on an application for the modification or discharge of restrictive covenants under section 84 of the Law of Property Act 1925.

Citations:

[2020] UKSC 45

Links:

Bailii, Bailii Press Summary, Bailii Issues and Facts

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Citing:

Appeal from – The Alexander Devine Children’s Cancer Trust v Millgate Developments Ltd and Others CA 28-Nov-2018
Appeal from grant of permission for modification of restrictive covenants on land. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 26 March 2022; Ref: scu.655461

The Alexander Devine Children’s Cancer Trust v Millgate Developments Ltd and Others: CA 28 Nov 2018

Appeal from grant of permission for modification of restrictive covenants on land.

Judges:

Underhill, Sales, Moylan LJJ

Citations:

[2018] EWCA Civ 2679, [2019] JPL 471, [2019] 2 P and CR 2, [2019] 1 WLR 2729, [2018] WLR(D) 733

Links:

Bailii, WLRD

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Appeal from – Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd SC 6-Nov-2020
The correct approach to the ‘public interest’ requirement on an application for the modification or discharge of restrictive covenants under section 84 of the Law of Property Act 1925. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 26 March 2022; Ref: scu.630751

Glasgow and South-Western Railway Co v Ayr Magistrates: HL 27 Feb 1912

The Burgh Police (Scotland) Act 1892, sec. 4 (31), enacts-”Street’ shall include any road, highway, bridge, quay, lane, . . thoroughfare, and public passage, or other place within the burgh used either by carts or foot-passengers, and not being or forming part of any harbour, railway, or canal station. . . ‘
The Burgh Police (Scotland) Act 1903, sec. 104 (2) ( d), enacts-‘Where any private street or part of such street has not . . been sufficiently levelled, paved, . . and flagged to the satisfaction of the council, it shall be lawful for the council to cause any such street or part thereof . . to be freed from obstruction, and to be properly levelled, paved. . . ‘
Held ( aff. judgment of the First Division) (1) that a strip of ground in a burgh adjoining a railway, consisting of an unformed road along which existed a public right-of-way for traffic of all descriptions, which had been acquired by the railway company in 1889 for ‘extraordinary purposes,’ but never used till 1908, when the company laid a set of rails on it, did not form ‘part of any railway,’ and fell within the definition of ‘street’ in the Burgh Police (Scotland) Acts; and (2) that the rails laid by the company might form ‘obstructions.’

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

[1912] UKHL 9, 50 SLR 9

Links:

Bailii

Jurisdiction:

Scotland

Transport, Land

Updated: 26 March 2022; Ref: scu.619229

Sutton and East Surrey Water Plc v Kilby and Others, Re Woodcote Reservoir: UTLC 13 Jun 2017

UTLC RESTRICTIVE COVENANTS – Law of Property Act 1925 Section 84 — application for discharge or modification of restrictive covenants — covenants imposed by a deed of 1910 which is no longer available — whether objectors entitled to the benefit of the covenants

Citations:

[2017] UKUT 248 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 26 March 2022; Ref: scu.587785

Why v Cheltenham Borough Council: UTLC 24 May 2017

UTLC COMPENSATION – compulsory purchase – unoccupied house – condition adversely affecting amenity of neighbourhood – open market value – comparables – deduction for local land charges – cost of property and garden clearance – compensation assessed at 140,000 pounds

Citations:

[2017] UKUT 208 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 March 2022; Ref: scu.584538

Dean and Another, Re The Leasow, 4 River View Close: UTLC 15 May 2017

Restrictive Covenants : Modification – restriction preventing construction of more than one house per plot – land with planning consent for an additional dwelling adjacent to existing house — whether proposed user reasonable – whether covenant secures practical benefits of substantial value or advantage to the objectors – ‘thin-end-of-the-wedge’ – whether injury to objectors – application granted – Law of Property Act 1925, sections 84(1)(aa) and (c)

Citations:

[2017] UKUT 203 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 March 2022; Ref: scu.583902

Westminster City Council v Haw: QBD 4 Oct 2002

The court was asked as to the interaction between the right and the duty of a local authority to remove obstructions from its highways, on the one hand, and the right of the individual citizen to use those highways to exercise his or her right to freedom of expression, on the other hand. It is an application by Westminster City Council, which is the local authority responsible for the highways, including the pavements, in Parliament Square in London, to restrain Mr Brian Haw from obstructing the pavement opposite the House of Commons by displaying there a considerable number of placards supporting his protest against the policies of the Government in relation to Iraq.

Judges:

Gray J

Citations:

[2002] EWHC 2073 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 26 March 2022; Ref: scu.426530

Creebray Ltd v Deninson and Another: UTLC 11 Sep 2020

Restrictive Covenants : Discharge and Modification – practical benefits of substantial value or advantage – building line – effect of proposed house upon outlook, overlooking, privacy, security and overshadowing – effect and significance of screening beech hedge – application refused – Law of Property Act 1925 section 84(1)(aa) and (c)

Citations:

[2020] UKUT 262 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 25 March 2022; Ref: scu.655161

Friends Trusts Ltd, Re A Notice of Reference: UTLC 13 Mar 2017

COMPENSATION – Acquisition of superior freehold interest – absent or untraceable owner – valuation – Places of Worship (Enfranchisement) Act 1920 – compensation determined at 2,500 pounds

Citations:

[2017] UKUT 109 (LC)

Links:

Bailii

Statutes:

Places of Worship (Enfranchisement) Act 1920

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582120

Samson, Re 41 Newcombe Street: UTLC 27 Mar 2017

RESTRICTIVE COVENANTS – proposed construction of additional house in existing terrace – restriction against development of application land without vendors’ approval – whether restriction obsolete – whether restriction secured substantial practical benefits – possible interference with right of way to rear of objectors’ properties – worsening of on-street car parking – application for discharge or modification – restriction modified under ground (aa) – s84 Law of Property Act 1925

Citations:

[2017] UKUT 127 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582123

Waggott and Another v Yip: UTLC 13 Mar 2017

UTLC RESTRICTIVE COVENANT – discharge – restriction preventing use of premises other than as offices – applicants wish to convert to two residential flats – whether restriction obsolete – whether covenant secures practical benefits of substantial value or advantage – whether discharge would injure the objector – application granted – Law of Property Act 1925 s.84(1)(a), (aa) and (c)

Citations:

[2017] UKUT 108 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)(a)

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582125

SME (Hammersmith) Ltd v Transport for London: UTLC 6 Mar 2017

COMPENSATION – Compulsory Purchase – leasehold franchise restaurant at Farringdon – extinguishment of business owing to Crossrail Scheme – agreed assumed maintainable earnings figure – dispute as to appropriate multiplier – comparable transactions of franchises – extinguishment value determined at 1,498,000 pounds.

Citations:

[2017] UKUT 91 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582124

Pritchett v Crossrail Ltd: CA 3 May 2017

Appeal from the judgment and order of Ouseley J dismissing the appellant’s application for judicial review of a decision of the respondent to offer land at Dean Street and Great Chapel Street, London W1 for sale in the open market.

Judges:

David, Lewison, McCombe LJJ

Citations:

[2017] EWCA Civ 317

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 24 March 2022; Ref: scu.582109

Honourable W Elphinstone v Campbell and Others: HL 30 Apr 1787

Right of Voting. – Whether a conveyance of a superiority of lands held under strict entail, conferred a substantial right of voting; or was a mere nominal and fictitious creation of a right, resorted to for the purpose of giving a right to vote for a member of Parliament?

Citations:

[1787] UKHL 3 – Paton – 77

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581018

Mrs Ann Paterson and Philip Anstruther, Mary Paterson, and Alexander Campbell and Henry Campbell v Stephen Bromfield, Esq: HL 19 Feb 1786

Entail. – A party had made an entail with power to alter. He afterwards altered, and made a new entail, differing in the destination from the first, with a clause merely referring to the prohibitory, irritant, and resolutive clauses in the first deed. Held, this reference clause not sufficient as an entail to protect against creditors.

Citations:

[1786] UKHL 3 – Paton – 50

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581009

Alex Clerk, Aberdeen v Hugh Gordon: HL 9 Mar 1787

Gestio pro Haerede – Passive Title. – A father had conveyed his whole estate, heritable and moveable, to his third son, who, in recovering, found an heritable debt of andpound;60, which was not specially embraced in the conveyance. To remove objections to his title to receive and discharge the debt, the father’s eldest son and heir-at-law, consented to sign the discharge along with his brother. Held, that this subjected him in the passive title of gestio pro haerede. But, in the House of Lords, case remitted back for consideration, and to adduce proof that, at the date of the discharge, his brother was in right to receive the debt of andpound;60.

Citations:

[1787] UKHL 3 – Paton – 61

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581015

Alex Cuthbert, Esq, and Chas Innes, Ws v Mrs Anstruther Paterson and Philip Anstruther Paterson, Esq, Her Husband: HL 23 Apr 1787

Entail. – Held, that where an entail was declared ineffectual against creditors, in consequence of not enumerating the irritant and resolutive clause, and not being recorded, that it could not be held good against a purchaser of the estate.

Citations:

[1787] UKHL 3 – Paton – 76

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 23 March 2022; Ref: scu.581017

Miss Frances Hay, A Minor, and Her Curators v Robert Hay, Esq, of Drumelzier: HL 25 Jun 1789

Entail – Succession – Heirs Male. – Circumstances in which the words ‘ heir male’ in an entail, received a strict technical interpretation, though they had been used with the same meaning, so far as appeared from the deed, as that of ‘ heirs male of the bodies’ of the substitutes, which had been used in other parts of the deed.

Citations:

[1789] UKHL 3 – Paton – 142

Links:

Bailii

Jurisdiction:

Scotland

Land, Trusts

Updated: 23 March 2022; Ref: scu.580999

Newdigate v Newdigate: 25 Nov 1826

Tenant for life, unimpeachable of waste, except in the park, demesne lands and woods adjoining the capital messuage, there being no woods of that description, cannot cut timber in any of the woods that are either an ornament or shelter to the messuage.

Citations:

[1826] EngR 1256, (1826) 1 Sim 131, (1826) 57 ER 527

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 23 March 2022; Ref: scu.326020

St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2): ChD 1975

A reservation contained In a conveyance must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances.
Held: Sir John Pennycuick said: ‘Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. But that is emphatically not the position here, where the reservation is in the loosest terms, i.e. simply ‘right of way.’ Indeed those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott’s contention, even if well-founded, seems to us to lead nowhere in the present case.’

Judges:

Sir John Pennycuick

Citations:

[1975] 1 WLR 468, [1975] 1 All ER 772

Jurisdiction:

England and Wales

Cited by:

Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.254432

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 before any infringement takes place: (1) The overall principle is that the Court must attempt to find what would be a ‘fair’ result of a hypothetical negotiation between the parties;
(2) The context, including the nature and seriousness of the breach, must be kept in mind;
(3) The right to prevent a development (or part) gives the owner of the right a significant bargaining position;
(4) The owner of the right with such a bargaining position will normally be expected to receive some part of the likely profit from the development (or relevant part);
(5) If there is no evidence of the likely size of the profit, the Court can do its best by awarding a suitable multiple of the damages for loss of amenity;
(6) If there is evidence of the likely size of the profit, the Court should normally award a sum which takes into account a fair percentage of the profit;
(7) The size of the award should not in any event be so large that the development (or relevant part) would not have taken place had such a sum been payable;
(8) After arriving at a figure which takes into consideration all the above and any other relevant factors, the Court needs to consider whether the ‘deal feels right’.’

Judges:

Gabriel Moss QC

Citations:

[2007] EWHC 828 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .

Cited by:

Appeal from – Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd CA 15-Nov-2007
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.254481

Bulstrode v Lambert: ChD 1953

The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court declined to limit the extent of the express reservation of a right to pass and repass over the whole of a yard coloured brown on the plan to the deed, by reference to the restriction at the point of entry consisting of a pair of gates hung on substantial pillars. The other terms of the grant, by its reference to workmen and the auction mart, were confirmatory of the width of the right granted.
There was an implied right to bring in and take out from the premises goods of the nature referable to the business (it was a furniture business), and to do this using vehicles of a size which could be expected. A further implication was that there was a right to halt in the yard to load and unload because otherwise there would be no point or utility in the access right conferred. These were two necessary implications found to arise as a direct result of the condition that the premises were in at the time of the grant. The rights to park, and to load and unload vehicles was an incident of easement and Upjohn J described it: ‘It is only an incident of the right of way expressly granted and may be described as ancillary to that easement because without that right he cannot substantially enjoy that which has been reserved to him.’

Judges:

Upjohn J

Citations:

[1953] 1 WLR 1064, [1953] 2 All ER 728

Jurisdiction:

England and Wales

Cited by:

Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Minor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.254435

Thames Guaranty v Campbell: CA 1984

A married couple bought a house in joint names. The husband borrowed from T and agreed to charge the land. When the property had been registered, he ordered the solicitors to deposit the land certificate with T as security. T registered a notice on the register, and later extended their loans to H. When they sought to enforce the charge the wife obtained an order for the delivery up of the land certificate.
Held: T’s appeal failed. The letter from the husband had been only confirmation that he would deposit the land certificate. At that time the letter was executory only, and since it had been made without his wife’s involvement or consent, an equitable charge had not arisen. The husband might be ordered to charge his own interest to T because of the bank’s own part performance. The doctrine of part performance would require a balancing of any hardship it might cause to the respective parties, and the wife would suffer far more hardship than the bank. The husband had not had the authority to release the land certificate to the bank and it must be returned.
Mann J said: ‘In my judgment the deposit of title deeds with the creditor does not operate as an equitable charge unless the deposit is an effective one. A deposit is an effective one in my view if the creditor can retain custody until his debt is paid. I do not regard the deposit of title deeds by one joint tenant without the consent of the other as being effective in that sense. ‘

Judges:

Mann J

Citations:

[1984] 3 WLR 109, [1984] 2 All ER 585, [1985] QB 210

Jurisdiction:

England and Wales

Equity, Land

Updated: 23 March 2022; Ref: scu.248853

Official Custodian for Charities v Goldridge: CA 1973

The social policy underlying the 1967 Act is that ‘the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder.’

Judges:

Lord Denning MR

Citations:

(1973) 26 P and CR 191, (1973) 227 EG 1467

Statutes:

Leasehold Reform Act 1967

Jurisdiction:

England and Wales

Cited by:

Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – Norfolk v Trinity College, Cambridge 1-Apr-1976
The Tribunal considered, for the first time the effect of a marriage value in determining the price of the freehold reversion.
Held: The marriage value was to be divided equally between the freeholder and tenant applicant. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.239390

Knightsbridge Estates Trust Ltd v Byrne: CA 1939

The company mortgaged properties in London to secure an advance from a Friendly Society. A clause of the mortgage provided for repayment by eighty half-yearly instalments. The mortgage further provided that if the mortgagor paid the instalments on the due dates and otherwise complied with the mortgage terms, the mortgagee would not require repayment at a date earlier than the scheduled forty year redemption date. Six years after entering the mortgage, the mortgagor wanted to redeem, and claimed that Clause 1 which postponed their equitable right to redeem for forty years was void as a clog on the equitable right to redeem.
Held: The clause was valid. Equity would grant relief against contractual terms that were oppressive or unconscionable, but this mortgage could not be so regarded. In assessing whether relief should be granted, all circumstances of the case should be considered, including the degree of mutuality. Although the contractual right to redeem had been postponed for forty years, the mortgagee also covenanted not to require payment of the sum for that time. It was an arm’s length commercial transaction upon which each party had received legal advice.

Citations:

[1939] 1 Ch 441, [1939] Ch 441

Jurisdiction:

England and Wales

Citing:

Appealed to – Knightsbridge Estates Trust Ltd v Byrne HL 1940
A mortgage of freehold land contained a covenant to repay the secured loan by half-yearly instalments over a period of 40 years. The mortgagors sought early redemption arguing that the contractual postponement of repayment over a 40 year period was . .

Cited by:

Cited – Multiservice Bookbinding Ltd v Marden ChD 1978
To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.219912

Bull v Bull: CA 1955

The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those arrangements fell through, the son sought possession of the house.
Held: Neither of joint tenants is entitled to exclude the other from occupation of the property held as joint tenants at law. However, the joint tenancy was created for a particular purpose, and an order for sale was refused where the effect would be to defeat that purpose. The parties had intended at the time the house was bought that the property would be tenants in common.
Denning LJ: ‘The son is, of course, the legal owner of the house, but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in prportion to his or her respective contribution. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but, if one of them should take more than his proper share, the injured party can bring an action for an account. If one of them should go so far as to oust the other, he is guilty of trespass.
Since 1925 there has been no such thing as a legal tenancy in common. All tenancies in common now are equitable only and they take effect behind a trust for sale (s36(4) of the Settled Land Act 1925). Nevertheless, until a sale takes place, these equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
My conclusion, therefore, is that when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner and that neither of them is entitled to turn out the other.’

Judges:

Devlin J, Denning LJ

Citations:

[1955] 1 QB 234

Statutes:

Settled Land Act 1925 36(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 23 March 2022; Ref: scu.207071

Fisher v Winch: CA 1939

The land of both parties had been in common ownership. The first plot to be conveyed was sold by a conveyance which set out by reference to the numbers on an Ordnance map the different parcels with their description and acreage. The second conveyance to the plaintiff was of ‘land . . Containing . . 3.261 acres . . numbered 214 on the Ordnance Survey map . . Which . . by way of identification only is delineated on the plan drawn whereon.’ That conveyance even more closely linked the sale to the Ordnance Survey.
Held: The effect of expert evidence was that a hedge or a fence is the boundary taken by the Ordnance Survey to delimit parcels shown on the maps. Where the party’s title derives from a document which refers to the Ordnance map, it is necessary to look at the Ordnance map and ascertain where the boundary on that map is truly positioned. The boundary referred to on the Ordnance Survey map is the centre line of the hedge and the fence. The OS map is sufficient to establish the line.

Judges:

Sir Wilfrid Greene MR, MacKinnon L.J

Citations:

[1939] 1 KB 666, [1939] 2 All ER 144, 108 LJ KB 473, 160 LT 347, 55 TLR 553, 83 Sol Jo 192

Jurisdiction:

England and Wales

Cited by:

Applied – Davey v Harrow Corporation CA 1957
The Plaintiff’s house was damaged by roots penetrating from trees on adjoining land. At first instance, Sellers J found that the damage was caused by the trees, but they were not proven to be the property of the defendants. On appeal and after . .
Not followed – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Disapplied – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.183675

Emile Elias and Co Limited v Pine Groves Limited: PC 1993

The parties disputed whether a building scheme had been established. There was no external evidence of the intention of the original parties.
Held: The building scheme was not established over a piece of land comprising five plots because (amongst other reasons) it was not shown that the purchasers of plots 1 and 3 (or their predecessors) knew that plot 5 was included. Their conveyances had a general plan showing plots 1 to 4, but not plot 5.

Judges:

Lord Keith of Kinkel, Lord Oliver of Aylmerton, Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Woolf

Citations:

[1993] 1 WLR 305, [1993] EG 31, (1993) 66 P and CR 1, [1993] UKPC 3

Links:

Bailii

Citing:

Cited – Reid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .

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 . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.242392

Colchester Borough Council v Smith and Others: CA 18 Mar 1992

A tenant was bound by his tenancy agreement which accepted the good title of the Landlord, and he was not to be heard to assert a prior adverse possession claim against the Landlord. Public policy requires that settlements should be enforced.

Citations:

Gazette 18-Mar-1992, [1992] Ch 421

Jurisdiction:

England and Wales

Cited by:

Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.79268

Turner and Another v Pryce and others: ChD 9 Jan 2008

The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the claimants.
Held: There was not only an intention to create a building scheme but also a clearly defined area in which the scheme was to operate. The proposed works would breach the covenants. The overall character of the estate had not changed so as to make the covenants obsolete or worthless. Nor had there been other breaches such as to allow a claim of acquiescence. There were no circumstances to justify the refusal of the injunction sought.

Judges:

Stephen Smith QC

Citations:

[2008] EWHC B1 (Ch)

Links:

Bailii

Statutes:

Land Registration Act 1925 50(2), Law of Property Act 1925 84

Jurisdiction:

England and Wales

Citing:

Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Baxter v Four Oaks Properties Limited ChD 1965
The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean . .
Cited – Lund v Taylor CA 1975
The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect’s plan prepared for the common vendor or was told that the common vendor was proposing to . .
Cited – Reid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .
Cited – Emile Elias and Co Limited v Pine Groves Limited PC 1993
The parties disputed whether a building scheme had been established. There was no external evidence of the intention of the original parties.
Held: The building scheme was not established over a piece of land comprising five plots because . .
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 – Chatsworth Estates Company v Fewell 1931
The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had . .
Cited – Bell v Norman C Ashton Ltd 1957
The property was on land part of a building scheme, with a covenant not to erect more than two houses on any one plot on the estate. Other restrictive covenants had been breached by the use of some properties as shops and by the erection of dwelling . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – Robins v Berkeley Homes (Kent) Ltd 1996
A building scheme applied to land. A development was challenged as being in breach.
Held: The defences both of change of character of the neighbourhood and acquiescence both failed, and a final injunction was granted. . .
Cited – Hepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 March 2022; Ref: scu.263648

London Borough of Brent v Johnson: CA 18 Jan 2022

Whether Brent LBC holds land wholly or partly on charitable trusts; either because such a trust arose when it acquired the land or because of the way in which money was raised for its conversion into a community centre. There was a dispute about whether the second way of putting the case was a legitimate argument to be put before this court in view of the way in which the case was put below.

Judges:

Lord Justice Lewison
Lord Justice Arnold
And
Lord Justice Snowden

Citations:

[2022] EWCA Civ 28

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Land, Local Government, Charity

Updated: 23 March 2022; Ref: scu.671304

Brown and Others v South West Lakes Trust and Others: CA 17 Jan 2022

This appeal raises issues about whether claims: (1) under the Occupiers’ Liability Act 1984 (‘the 1984 Act’) against occupiers of land adjoining a highway; and (2) against the relevant highway authority; arising from a tragic road traffic accident were reasonable causes of action or had a real prospect of success.

Judges:

Lord Justice Lewison
Lord Justice Dingemans
And
Lord Justice William Davis

Citations:

[2022] EWCA Civ 18

Links:

Bailii, Judiciary

Statutes:

Occupiers’ Liability Act 1984

Jurisdiction:

England and Wales

Personal Injury, Negligence, Land

Updated: 23 March 2022; Ref: scu.671302

Schwann v Cotton: CA 1916

Blackacre, Greenacre and Whiteacre had all formerly been in common ownership and the owner of Whiteacre denied that Blackacre was entitled to an easement to pass the water from Greenacre to Blackacre.
Held: The Will which effected’ the severance of the three properties operated to devise Blackacre with the right of passage of such water as might flow through the pipe and to devise Whiteacre subject to such a right. Further, although the right of Blackacre to a supply of water from Greenacre had not been established, the possible lack of any right to such water as against Greenacre did not impair the validity of the right to the passage of water through Whiteacre. In considering an easement for a water supply the court drew a crucial distinction between a right to supply of water and a right to the passage of water. The obligation was limited to a duty to allow water to flow along the pipe. It was not a duty to supply water.

Citations:

[1916] 2 CH 459

Jurisdiction:

England and Wales

Cited by:

Cited – Duffy v Lamb (T/a Vic Lamb Developments) CA 10-Apr-1997
The plaintiff sought damages after the interruption of the electricity supply from neighbouring land by the defendant. An easement was established, but the defendant wanted the plaintiff to make his own arrangements for connection. The judge had . .
Cited – Rance v Elvin CA 14-Feb-1985
The plaintiff complained that he had an easement over the defendants land for the supply of water, including the right to connect into the mains on the defendant’s land. The defendant said that the right was only to connect to the mains directly. . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 23 March 2022; Ref: scu.263629

Elliston v Reacher: ChD 1908

The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same vendor who must have laid out a definitive scheme for development before the sales, and intended to impose mutually enforceable restrictions between the plot purchasers. Every buyer must have known of the intended scheme and the restrictions and of the intended mutual enforceability. Also the fact that the benefit of the covenants in a scheme may also attach to property which is situated outside the area of the scheme is not necessarily fatal to the requirement of reciprocity and mutuality between the properties within the scheme.
Parker J said: ‘In my judgment, in order to bring the principles of Renals v Cowlishaw (1879) 11 Ch D 866 and Spicer v Martin (1888) 14 App Cas 12 into operation it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lots, are consistent and consistent only with some general scheme of development; (3) that these restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and (4) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors. If these four points be established, I think that the plaintiffs would in equity be entitled to enforce the restrictive covenants entered into by the defendants or their predecessors with the common vendor irrespective of the dates of the respective purchases. I may observe, with reference to the third point, that the vendor’s object in imposing the restrictions must in general be gathered from all the circumstances of the case, including in particular the nature of the restrictions. If a general observance of the restrictions is in fact calculated to enhance the values of the several lots offered for sale, it is an easy inference that the vendor intended the restrictions to be for the benefit of all the lots, even though he might retain other land the value of which might be similarly enhanced, for a vendor may naturally be expected to aim at obtaining the highest possible price for his land. Further, if the first three points be established, the fourth point may readily be inferred, provided the purchasers have notice of the facts involved in the three first points; but if the purchaser purchases in ignorance of any material part of those facts, it would be difficult, if not impossible, to establish the fourth point.’

Judges:

Parker J

Citations:

[1908] 2 Ch 665, [1908-1910] All E Rep 612

Jurisdiction:

England and Wales

Citing:

Cited – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – Spicer v Martin HL 1888
Lord McNaughton said: ‘The site was laid out in accordance with the building scheme. The houses were to be built as private houses, and to be used for no other purpose: a covenant to that effect was imposed on the builder who bought the ground, and . .
Cited – Osborne v Bradley ChD 1903
The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land . .

Cited by:

Appeal from (approved) – Elliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
Cited – Reid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .
Cited – Pinewood Estate, Farnborough, Re; New Ideal Homesteads Ltd v Levack ChD 1957
Covenants in building scheme – not annexed to land . .
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 . .
Cited – Baxter v Four Oaks Properties Limited ChD 1965
The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean . .
Cited – Lund v Taylor CA 1975
The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect’s plan prepared for the common vendor or was told that the common vendor was proposing to . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Halsall v Brizell ChD 1957
The Court was asked whether the covenant to pay an appropriate proportion of the costs of keeping in good repair the roadways, sea wall, drains and sewers in respect of a common development was enforceable.
Held: The defendants could not be . .
Cited – Wilkinson and Others v Kerdene Ltd CA 6-Feb-2013
The court considered the effect of historic conveyances creating a scheme for the maintenance of roads etc within an estate. . .
Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 23 March 2022; Ref: scu.188838

First National Securities v Hegerty: CA 1984

The husband had forged his wife’s signature on the loan application and on the charge of the house held by himself and his wife as joint tenants. He had left the country, and the plaintiff sought to enforce the charge, and ex parte obtained an order nisi charging the husband’s interest in the house. The wife petitioned for divorce. The bank appealed the master’s refusal to make the charging order absolute, and the High Court upheld the appeal and refused to allow the matter to transfer to the Family Division.
Held: The wife’s appeal failed. The judge had identified and considered the correct issues. The plaintiffs had not delayed their action, and had begun it before the divorce. Stephenson LJ said that the courts should not defeat claims from legitimate creditors by use of a matrimonial jurisdiction, though enforcement of a charging order might be deferred until any application under section 30 of the 1925 Act had been dealt with,

Judges:

Stephenson LJ

Citations:

[1984] 3 WLR 769, [1984] 3 All ER 641, [1985] QB 850, [1984] Fam Law 315

Statutes:

Law of Property Act 1925 30, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Land, Family, Litigation Practice

Updated: 23 March 2022; Ref: scu.248852

Quennell v Maltby: CA 15 Nov 1978

A house was mortgaged to a bank. The house was then let to tenants at an annual rate of pounds 1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a transfer of the mortgage and sued for possession. The purpose of obtaining possession was not to enable the wife to sell in her capacity as transferee of the mortgage, but to enable her husband, the mortgagor, to do so.
Held: A tenant granted by a mortgagor in breach of his mortgage is estopped from denying the validity of the lease (or sublease) while his occupation thereunder remains undisturbed.
Bridge L said: ‘on the facts of this case it is as plain as a pikestaff that the purpose of the bringing of these proceedings via Mrs. Quennell is not for her own benefit to protect or enforce the security which she holds as the transferee of the legal charge but for the benefit of her husband as mortgagor to enable him to sell the property with the benefit of vacant possession. In substance she is suing as his agent.’
Templeman LJ said: ‘The estate, rights and powers of a mortgagee, however, are only vested in a mortgagee to protect his position as a mortgagee and to enable him to obtain repayment. Subject to this, the property belongs in equity to the mortgagor.’ and ‘In the present case it is clear from the facts and the evidence that the mortgagee, Mrs. Quennell, is not bona fide exercising her rights and powers for her own purposes as mortgagee but for the purpose of enabling the landlord mortgagor (her own husband) to repudiate his contractual obligations and defeat the statutory tenancy of the tenant which is binding on the landlord. Mrs. Quennell does not even pretend to be acting in her own interests as mortgagee. She brings this action to oblige her husband. In my judgment the court must therefore treat this action, although in form brought by a mortgagee, as an action brought for and on behalf of the landlord mortgagor.’
Lord Denning MR: ‘So the objective is plain. It was not to enforce the security or to obtain repayment or anything of that kind. It was in order to get possession of the house and to overcome the protection of the Rent Acts.’ and ‘So here in modern times equity can step in so as to prevent a mortgagee, or a transferee from him, from getting possession of [the property] contrary to the justice of the case. A mortgagee will be restrained from getting possession except when it is sought bona fide and reasonably for the purpose of enforcing a security and then only subject to such conditions as the court thinks fit to impose. When the bank itself or building society lends the money, then it may be right to allow the mortgagee to obtain possession when the borrower is in default. But so long as the interest is paid, and there is none outstanding, equity has ample power to restrain any unjust use of the right to possession.’

Judges:

Lord Denning MR, Bridge LJ, Templeman LJ

Citations:

[1979] 1 WLR 318, [1979] 1 All ER 568, [1978] EWCA Civ 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Abbey National Plc v Tufts CA 16-Feb-1999
A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 30-Jan-2013
(British Virgin Islands) The claimant sought to recover shareholdings given in charge.
Held: There was an event of default, which entitled ATT to accelerate the loan and to appropriate – or forfeit – the charged shares, but that relief against . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity, Land

Updated: 23 March 2022; Ref: scu.183103