Category: Land

Bond and Others v Dorset County Council: UTLC 11 Oct 2010

UTLC COMPENSATION – modification order – preliminary issue – leaseholder claimant – freeholder granting lease to another person on expiry of claimant’s lease – whether compensation could be claimed on basis that in the absence of the modification a new lease would have been granted to the claimant – held that it could not – loss not directly attributable to modification – Town and Country Planning Act 1990 ss 107 and 117, Land Compensation Act 1961 s 5

[2010] UKUT 364 (LC)
Bailii
Land Compensation Act 1961 5, Town and Country Planning Act 1990 107 117
England and Wales

Land

Updated: 23 January 2022; Ref: scu.569600

Robertson and Others v Manchester Airport Plc: UTLC 25 Oct 2010

COMPENSATION – Land Compensation Act 1973 Part I – depreciation by physical factors caused by the use of second runway at Manchester Airport – noise, vibration and fumes – impact of agreed increase in noise – analysis of conflicting valuation evidence – compensation assessed at pounds 72,500 and pounds 40,000

[2010] UKUT 370 (LC)
Bailii
England and Wales

Land

Updated: 23 January 2022; Ref: scu.569606

Hemingby Agricultural Traders Ltd and Another v East Lindsey District Council: UTLC 28 Oct 2010

UTLC COMPENSATION – Compulsory Purchase of Grade II listed buildings in poor repair – valuation by comparables or residual method – cost of repair and reinstatement – Land Compensation Act 1961 section 5, rule (2) – compensation determined at pounds 32,500

[2010] UKUT 390 (LC)
Bailii
Land Compensation Act 1961
England and Wales

Land

Updated: 23 January 2022; Ref: scu.569601

Surana, Re Land Adjoining 21 Icklingham Road: UTLC 30 Aug 2016

UTLC RESTRICTIVE COVENANT – modification – building scheme – land originally designated a close to which all residents would have access – prohibition on building and uses other than garden or recreation ground for residents – land sold in 1952 and since used as private garden with no access for residents – history of objections to development – planning permission for erection of two detached houses – whether covenants to be modified – application granted – no compensation awarded – Law of Property Act 1925 s84(1)(a), (aa), (b) and (c )

[2016] UKUT 368 (LC)
Bailii
Law of Property Act 1925 84
England and Wales

Land

Updated: 23 January 2022; Ref: scu.569588

Burge and Another v South Gloucestershire Council: UTLC 27 Jul 2016

UTLC COMPENSATION – Tree Preservation Order – cracks appearing in conservatory – refusal of consent to fell oak tree on adjoining land – claim for cost of rebuilding conservatory – whether loss or damage reasonably foreseeable when consent refused – whether loss or damage foreseeable by claimants when conservatory erected – compensation awarded at andpound;25,000 – Town and Country Planning Act 1990, s203

[2016] UKUT 300 (LC)
Bailii
England and Wales

Land, Planning

Updated: 23 January 2022; Ref: scu.569580

Michael v Salford City Council: UTLC 6 Sep 2016

UTLC COMPENSATION – Compulsory Purchase – site in Salford – CPO as part of wider scheme – planning permissions – methods of valuation – residual method preferred – profits of development claim rejected in addition to market value – basic loss and other costs – compensation awarded at andpound;321,702.61 – Section 5, Land Compensation Act 1961.

[2016] UKUT 370 (LC)
Bailii
Land Compensation Act 1961 5
England and Wales

Land

Updated: 23 January 2022; Ref: scu.569591

Gateway Housing Association v Personal Representatives of Ali and Another: CA 22 Oct 2020

Correct procedure for terminating a periodic tenancy following the death of the tenant and before probate or letters of administration have been granted.

[2020] EWCA Civ 1339
Bailii
Law of Property (Miscellaneous Provisions) Act 1994 18
England and Wales

Housing, Land, Wills and Probate

Updated: 22 January 2022; Ref: scu.655048

Porter v Campbell’s Trustees and Others: HL 23 Jul 1923

A feucontract relating to a piece of ground upon which one of the houses in a terrace was built contained a clause binding the feuar to build on the steading of ground feued ‘a self-contained lodging . . and thereafter to maintain and uphold in good condition, . . and to rebuild . . the same if and when necessary of the same height, elevation, and outward style of architecture . . with the said lodging: . . Declaring that in construing the preceding clause with reference to the erection or rebuilding of said lodging it shall be read so that the external architecture . . shall correspond in all respects with the architecture of the rest of the terrace and shall line with steading number one of the said terrace. . . ‘ These conditions and restrictions were declared to be real burdens upon the ground in question. The proprietor of a house upon the steading having proposed to make certain alterations on the house, then in single occupation, which while not in any way affecting its external structure or elevation, would allow of its being occupied by four separate families, objection was taken by the proprietor of the adjoining house and also by the superior. Held ( aff. the judgment of the Second Division) that the proposed alterations, which affected merely the internal structure of the house, did not involve a contravention of the restriction in the feucontract, and appeal dismissed.

Viscount Haldane, Lord Atkinson, Lord Shaw, and Lord Parmoor
[1923] UKHL 630, 60 SLR 630
Bailii
Scotland

Land

Updated: 22 January 2022; Ref: scu.633266

Howley Park Coal and Cannel Co v London and North-Western Railway Co: HL 1 Nov 1913

The fact that a railway has acquired land under sections 77-85 of the Railways Clauses Consolidation Act 1845 does not exclude the common law right to lateral support from strata outside the forty yards or other prescribed limit mentioned in the Act.

Lord Chancellor (Viscount Haldane),the Earl of Halsbury, Lords Atkinson and Shaw
[1913] UKHL 638, 50 SLR 638
Bailii
England and Wales

Land

Updated: 22 January 2022; Ref: scu.632758

Liverpool Open and Green Spaces Community Interest Company, Regina (on The Application of) v Liverpool City Council: Admn 18 Jan 2019

Two claims by the applicant community interest company against the grant of planning permissions by the defendant local planning authority. The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into 12 apartments.

Kerr J
[2019] EWHC 55 (Admin)
Bailii
England and Wales

Land, Planning

Updated: 22 January 2022; Ref: scu.633158

Whiteley v Delaney: HL 9 Dec 1913

A. mortgaged property in Yorkshire to B. in order to secure a loan of pounds 300. He subsequently granted a second mortgage to the respondent C, and both mortgages were recorded under the Yorkshire Registries Acts. In order to provide the money to pay off C, A’s daughter D undertook to buy the property if she could find someone to advance pounds 300 to pay off B, and she instructed E, a solicitor, to this effect. E, ignorant of the existence of C’s mortgage, arranged for F lending the pounds 300 on mortgage, paid off B, and obtained from him the title-deeds, and prepared three dispositions of the property-( a) B to A, (b) A to D, (c) D to F-in security. C sued F, D, and A to have it declared that in virtue of deed (a) his mortgage had priority over F’s.
Held that F was equitable transferee of B’s first mortgage, and entitled to priority over C.

Lord Chancellor (Viscount Haldane), Lords Kinnear, Dunedin, and Atkinson
[1913] UKHL 855, 51 SLR 855
Bailii
England and Wales

Land, Equity

Updated: 22 January 2022; Ref: scu.632763

Roland Stafford Flowers v Linstone Chine Management Company Ltd: CA 4 May 2016

Renewed oral application for permission to appeal against the refusal of the Upper Tribunal (Lands Chamber) (Mr P R Francis FRICS) to vary or discharge a restrictive covenant under section 84(1) of the Law of Property Act 1925 as amended.

David Richards LJ
[2016] EWCA Civ 674
Bailii
Law of Property Act 1925 84(1)
England and Wales

Land

Updated: 22 January 2022; Ref: scu.568615

Habib Bank Ltd v Gulabhai Naginbas Tailor: CA 25 May 1982

Appeal against mortgagee possession order.
Held: S 36 relief is in practice to be limited to a restricted range of cases – ‘for, if the mortgagor was already in difficulties with his instalments, the chances of his being able to pay off the whole principal as well in a reasonable time must be considered fairly slim’

Oliver LJ
[1982] EWCA Civ 6, [1982] 3 All ER 561, [1982] 1 WLR 1218
Bailii
Administration of justice Act 1970 36
England and Wales

Land, Banking

Updated: 22 January 2022; Ref: scu.262673

IDC Group Ltd v Clark: CA 2 Jul 1992

The court was asked: ‘whether a deed made between adjoining owners and expressed to ‘grant licence’ to the owners and occupiers for the time being of one property to pass over parts of the other in case of fire operated as the grant of an easement or merely as the grant of a licence.’
Held: The appeal against the finding that a mere licence had been granted, failed. The document had been drawn professionally and the choice of the word licence must be assumed to have been deliberate. No element pointed in any other direction.

Nourse, Stocker, Beldam LJJ
Gazette 26-Aug-1992, Times 23-Jul-1992, [1992] EWCA Civ 14, [1992] 49 EG 103, (1993) 65 P and CR 179
Bailii
England and Wales
Citing:
Cited – Thomas v Sorrell KBD 1674
The plaintiff said that the defendant had sold wine without paying a license fee as required under a statute creating the Company of Vintners.
Held: Vaughan CJ said: ‘every act a man is naturally enabled to do, is in it self equally good, as . .
Cited – Addiscombe Garden Estates Ltd v Crabbe CA 1957
The trustees of a tennis club took possession of tennis courts and a clubhouse under a lease, and sought a new lease under the 1954 Act. The landlord said that they were only licensees and in any event were not entitled to a new lease since they . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 January 2022; Ref: scu.262626

Wiltshire County Council v Frazer: CA 1984

For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: ‘(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant ;
(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his).’
May LJ said: ‘It seems to me clear beyond a peradventure that no other interpretation of the facts is possible than that these defendants and the other persons unknown are wrongly in occupation of the highway. I think it matters not that each several caravan is at a separate point on the highway’.

Stephenson, May LJJ
(1984) 47 PandCR 69
Rules of the Supreme Court Order 113
England and Wales
Cited by:
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 22 January 2022; Ref: scu.247617

Manchester Corporation v Connolly: CA 1970

The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. ‘

Lord Diplock
[1970] Ch 420
England and Wales
Cited by:
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .

Lists of cited by and citing cases may be incomplete.

Planning, Land, Litigation Practice

Updated: 22 January 2022; Ref: scu.182489

Petty v Parsons: CA 14 Jul 1914

The court considered a request by a dominant easement owner to vary the point at which he accessed a right of way. Swinfen Eady LJ said: ‘It is a question of construction in a deed granting a right of way whether the way that is granted is a way so that the grantee may open gates, or means of access to the way, at any point of his frontage, or whether it is merely a way between two points, a right to pass over the road, and is limited to the modes of access to the road existing at the date of the grant.’
Pickford LJ said that, assuming the right of access from every part of the land from which access is required to every part of the way, such access should be given as will give reasonable opportunity for the exercise of the right.

Swinfen Eady LJ, Pickford LJ
[1914] 2 Ch 653, [1914] UKLawRpCh 92
Commonlii
England and Wales
Cited by:
Cited – Lomax and Another v Wood CA 11-Jun-2001
Land owners were granted a right of way over an occupation road to the highway. They had other means of access to the highway, but eventually sought to construct a gateway onto the occupation road. The owners of the occupation road resisted. It was . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 January 2022; Ref: scu.258599

Cenac and Others v Schafer: PC 2 Aug 2016

(Saint Lucia) The law of St Lucia restricted the holding of land on St Lucia by an alien without a government licence. The Board was now asked to consider a transaction in such land between two US citizens.

Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge, Sir Kim Lewison
[2016] UKPC 25
Bailii
Commonwealth

Land

Updated: 20 January 2022; Ref: scu.567888

Trago Mills Ltd, Regina (on The Application of) v The Secretary of State for Communities and Local Government and Another: Admn 21 Jul 2016

The Claimant challenges the decision of the Examining Authority on behalf of the Defendant Secretary of State to refuse the Claimant’s application for an award of costs in securing the exclusion of part of its land from compulsory acquisition under the Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015. The Examining Authority accepted – and it is now common ground – that the Claimant was a ‘successful objector’ in this respect, which is normally sufficient for a costs order to be made; but he refused to award costs on the basis that the application for costs was made later than the Secretary of State’s guidance required and there were no good grounds to exercise his discretion to extend that time.

Hickinbottom J
[2016] EWHC 1792 (Admin)
Bailii

Land

Updated: 20 January 2022; Ref: scu.567399

Hussain, Re 23 Bartlett Close: UTLC 4 Jul 2016

UTLC RESTRICTIVE COVENANTS – modification – proposed extension to house by addition of a third storey – building scheme – whether substantial effect on amenity of contiguous landowners on the estate – residents association – whether application if granted represents thin end of the wedge – character and ethos of the estate – whether temporary construction disturbance a relevant factor – application dismissed – s84 Law of Property Act 1925 grounds (aa) and c)

[2016] UKUT 297 (LC)
Bailii
Law of Property Act 1925 84
England and Wales

Land

Updated: 20 January 2022; Ref: scu.567336

Boland and Another v Bridgend County Borough Council: UTLC 7 Jul 2016

UTLC CERTIFICATE OF APPROPRIATE ALTERNATIVE DEVELOPMENT – compulsory purchase for replacement school – valuation by reference to agricultural value – whether housing would have been appropriate alternative development – whether the UDP settlement boundary should remain unaltered upon cancellation assumption – whether improvement of highway junction is likely to have been achieved to accommodate such development – appeal allowed

[2016] UKUT 174 (LC)
Bailii
England and Wales

Land

Updated: 20 January 2022; Ref: scu.567335

Paragon Finance Plc (Formerly the National Home Loans Corporation Plc) v Pender and Pender: ChD 25 Nov 2003

Section 114 of the 1925 Act has no application to Registered Land. It provides for a transfer ‘unless a contrary intention is expressed’ in the mortgage. Thus if section 114 applies, all depends upon the true construction of the mortgage. The power under the Civil Procedure Rules to revoke an earlier order included a power to revoke an order made under the earlier rules. Peter Smith J: ‘In my opinion, section 114 LPA 1925, either has no impact in the case of a transfer of a registered charge under registered land or its effects are subject to the need for the transferee to become registered proprietor under the LRA regime.’ and
‘In my judgment although s. 114 LPA does not say so it is not intended to apply to transfers of registered charges under the LRA 1925. The regime for transferring those charges is the statutory regime to which I have made reference above.’
‘That does not mean that section 114 will have no effect.’

The Honourable Mr Justice Peter Smith
[2003] EWHC 2834 (Ch)
Bailii
Law of Property Act 1925 114
England and Wales
Cited by:
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Per incuriam – Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh v Thomas Koshy ChD 13-Dec-2004
The parties had been involved in protracted litigation where a freezing order had been made to support a claim which was eventually dismissed. The claimant sought to have set aside an earlier order made ordering him to pay costs on failing to have . .
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 . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Land, Registered Land

Updated: 20 January 2022; Ref: scu.188254

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 grounds of the plaintiff’s delay in commencing proceedings. The defendant was ‘liable to pay an amount of damages which so far as it can be estimated is equivalent to a proper and fair price which would be payable for the acquisition of the right of way in question.’
Graham J said: ‘I think that for the purposes of estimating damages [the plaintiffs] and the other servient owners in Hill Road, albeit reluctant, must be treated as being willing to accept a fair price for the right of way in question and must not be treated as if they were in the extremely powerful bargaining position which an interlocutory injunction would have given them if it had been obtained before the defendant started operations and incurred expense. Such is to my mind the penalty of standing by until the house is built.
On the evidence here the probable figure of notional profit which the defendant has made, being the difference between the overall cost of the new house and its present-day value seems to be somewhere between andpound;4,000 and andpound;6,000 and I think it is fair to take andpound;5,000 as about as accurate a figure as one can get. The circumstances here are very different from those in the Wrotham Park case and I think that the proper approach is to endeavour to arrive at a fair figure which, on the assumption made, the parties would have arrived at as one which the plaintiffs would accept as compensating them for loss of amenity and increased user [of the private road], and which at the same time, whilst making the blue land a viable building plot, would not be so high as to deter the defendant from building at all. . . . I think he would have been prepared to pay what is relatively to his notional profit quite a large sum for the right of way in question and to achieve the building of his new home. This was a time of rising property values and I think he would have been prepared to pay andpound;2,000 to get his right of way and if he had made such an offer, I think the other five owners in Hill Road ought also to have been prepared to accept it.. . . ‘

Graham J
[1975] Ch 408
England and Wales
Citing:
Distinguished – 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 by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
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 – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Anchor Brewhouse Developments -v Berkley House (Docklands) Developments 1987
A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some . .
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 – 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 – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
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, Damages

Updated: 20 January 2022; Ref: scu.186372

Khosrowpour v Mackay: SCS 1 Jul 2016

Extra Division, Inner House – ‘Hamid Khosrowpour (the pursuer) seeks damages from the estate of his late mother-in-law (the deceased) on the basis that she failed to honour an agreement that she would leave her house to him in her will. The pursuer offers to prove that in 1989 she agreed to do this in return for payment of andpound;8,000, which allowed her to exercise her right to purchase the house then tenanted by her from the local authority; andpound;800 being referable to legal costs, etc. ‘

Lord Malcolm
[2016] ScotCS CSIH – 50
Bailii

Scotland, Land, Trusts

Updated: 19 January 2022; Ref: scu.566806

Firstpost Homes Ltd v Johnson and Others: CA 14 Aug 1995

The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the letter which contained the contract which referred to the plan and incorporated it and it was the letter which under Section 2 had to be signed. A typed signature is insufficient for a land contract. Old Frauds cases are irrelevant under the new regime introduced for exchange and otherwise of contracts for the sale of land.
New provisions on signatures are to stand free of both old cases and statutes on the topic. The purpose of section 2 was to introduce a new and stricter regime in relation to contracts for the creation or transfer of interests in land.
Peter Gibson LJ said: ‘The point is a short one and largely one of first impression, though in considering whether the two sheets of paper are one document or two for the purposes of s 2 of the 1989 Act it is important to bear in mind that the section expressly contemplates that one document may incorporate the terms of a second document by reference. It seems to me that the natural way of looking at the letter enclosing the plan, to use the significant language of the letter, is to treat the letter alone as one document and the plan as another document, the terms of which are incorporated in the letter. That incorporation comes about because of the reference in the letter to the plan as showing what are the 15.64 acres of land at the rear of Fulfen Farm.’ and ‘the Act of 1989 seems to me to have a new and different philosophy from that which the Statue of Frauds 1677 and section 40 of the Act of 1925 had.’
Balcombe LJ: ‘Like the proverbial elephant, a document may be difficult to define but it is easy to recognise’.

Peter Gibson, Balcombe, Hutchison LJJ
Gazette 15-Sep-1995, Times 14-Aug-1995, [1995] 1 WLR 1567, [1995] 4 All ER 355
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Courtney v Corp Ltd CA 1-Mar-2006
The claimants sought to enforce an offer of finance to support a land purchase. The defendants argued that the offer failed to meet the characteristics required under section 2 of the 1989 Act.
Held: The judge had been correct to say that the . .
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Cited – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Cited – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Urban Manor Limited v Sadiq CA 20-Feb-1997
Appeal by prospective purchaser of property from order that contract rescinded, and deposit forfeited. . .
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.

Land, Contract

Updated: 19 January 2022; Ref: scu.80571

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 void under the 1989 Act could, by acts amounting to a possible part performance of the purported contract, mature into a valid contract.

Laws, Rimer, Patten LJJ
[2012] EWCA Civ 900, [2012] WLR(D) 201, [2012] 2 EGLR 173, [2012] 2 P and CR 18, [2012] 1 WLR 2855
Bailii, WLRD
Law of Property (Miscellaneous Provisions) Act 1989 2
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 – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – 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. . .
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 – 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 – Helden v Strathmore Ltd CA 11-May-2011
The defendant appealed against an order finding valid a charge in favour of the claimant despite non-compliance with the 2000 Act.
Lord Neuberger MR said as to the 1989 Act: Section 2 is concerned with contracts for the creation or sale of . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 19 January 2022; Ref: scu.462519

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 carried out, and on the satisfactory completion of the works, receive 30,000 pounds towards their cost from the intending landlord, Guinea Properties. The provisions as to shop-fitting works, rent-free period and the landlord’s contribution to the works were all contained in a document separate and distinct from the contract for lease.
Held: Since the land contract had been fully performed by the grant of the lease, there was nothing in section 2 adversely to affect the enforceability of the terms relating to the shop-fitting. When looking at the contract under the Act, the court allowed a ‘composite bargain’, i.e. to provide in a first contract for a second contract, the first contract amounting to consideration for the second. It may be possible for parties to hive off parts of their arrangements into separate and distinct contracts. Section 2 applies only to an executory contract for the sale or disposition of an interest in land. Once all the land elements of an alleged contract have been performed, the remaining parts of the alleged contract can be examined without reference to section 2.
Scott LJ said: ‘If parties choose to hive off part of the terms of their composite bargain into a separate contract distinct from the written land contract that incorporates the rest of the terms, I can see nothing in section 2 that provides an answer to an action for enforcement of the land contract, on the one hand, or of the separate contract on the other hand. Each has become, by the contractual choice of the parties, a separate contract.’

Scott LJ
[1992] 64 P and CR 452, [1992] 2 EGLR 80
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
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 – 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. . .
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: 19 January 2022; Ref: scu.188873

Haywood v The Brunswick Permanent Benefit Building Society: CA 3 Dec 1881

The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ said that Tulk -v- Moxhay: ‘decided that an assignee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that covenants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced … It is said that if we decide for the defendants we shall have to overrule Cooke v. Chilcott, 3 Ch. D. 694. If that case was decided on the equitable doctrine of notice, I think we ought to overrule it.’
Cotton LJ said: ‘Let us consider the examples in which a court of equity has enforced covenants affecting land. We find that they have been invariably enforced if they have been restrictive, and that with the exception of the covenants in Cooke v. Chilcott 3 Ch. D. 694, only restrictive covenants have been enforced.’ and that Tulk v. Moxhay: ‘lays down the real principle that an equity attaches to the owner of the land
The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length.’

Cotton LJ, Brett LJ
(1881) 8 QBD 403, (1881-1882) 8 QBD 403, [1881] UKLawRpKQB 160
Commonlii
England and Wales
Cited by:
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 19 January 2022; Ref: scu.260255

Birdlip Ltd v Hunter and Another: CA 28 Jun 2016

The court was asked whether Mr and Mrs Hunter are entitled to enforce restrictive covenants against Birdlip Ltd which has planning permission to build two houses on land that it owns in Gerrards Cross. The answer to that question turns on whether their respective properties are part of a scheme of development affected by mutually enforceable restrictive covenants.

Laws, Lewison, Gloster LJJ
[2016] EWCA Civ 603
Bailii
England and Wales

Land

Updated: 18 January 2022; Ref: scu.566180

Bolton v Bolton: ChD 10 May 1879

A contract to sell land with the appurtenances does not pass a right to a way to the land sold which the vendor has used over adjoining land of his own.
Where a grantee is entitled to a way of necessity over another tenement belonging to the grantor, and there are to the tenement granted more ways than one, the grantee is entitled to one way only, which the grantor may select.
Fry J said: ‘When a man who is owner of two fields walks over one to get to the other, that walking is attributable to the ownership of the land over which he is walking, and not necessarily to the ownership of the land to which he is walking.’

Fry J
(1879) 11 ChD 968, [1879] UKLawRpCh 175
Commonlii
England and Wales
Cited by:
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 January 2022; Ref: scu.239388

Long v Gowlett: 1923

Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply.

[1923] 2 Ch 177
Law of Property Act 1925 62(1)
England and Wales
Cited by:
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .
Cited – Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others ChD 8-Aug-2006
Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 January 2022; Ref: scu.239389

Donnelly v Adams: 1905

(Ireland)

[1905] 1 Irish Reports 154
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 . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 January 2022; Ref: scu.239385

Knight v Goulandris: CA 20 Feb 2018

One neighbour had carried out construction on the boundary with the other. The parties now disputed the damages to be awarded on arbitration, and whether the notice of the award had been properly serve by email.

Patten, Hamblen, Henderson LJJ
[2018] EWCA Civ 237, [2018] 3 All ER 505, [2018] WLR(D) 108, [2018] 1 WLR 3345, [2018] 1 P andCR 19
Bailii
Party Wall etc Act 1996 10(1)(b), Party Wall etc Act 1996 (Electronic Communications) Order 2016, Electronic Communications Act 2000 8
England and Wales

Land

Updated: 18 January 2022; Ref: scu.605309

Nester v Stuart: UTLC 4 Jul 2007

UTLC RESTRICTIVE COVENANTS – costs – single objector – objections withdrawn before exchange of expert reports – whether objector’s conduct unreasonable – objector ordered to pay applicants’ costs

[2007] EWLands LP – 53 – 2005
Bailii
England and Wales

Land

Updated: 18 January 2022; Ref: scu.565808

William Hill Organization Ltd v Crossrail Limited: UTLC 17 Jun 2016

UTLC COMPENSATION – Procedure – substitution of Acquiring Authority as respondent to reference after expiry of limitation period – whether essential to validity of reference – jurisdiction to make order – applicable principles – ss.9 and 35, Limitation Act 1980 – s.25 Tribunal, Courts and Enforcement Act 2007 – rule 9(1), Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 – CPR r. 19.5 – application allowed

[2016] UKUT 275 (LC)
Bailii
England and Wales

Land

Updated: 18 January 2022; Ref: scu.565807

Foreprime Properties Ltd v Cheval Bridging Finance Ltd: CA 10 Nov 2015

Leave to appeal against rejetion of a claim that the respondent mortgagee had failed to secure the best price on realising the property charged.

Tomlinson LJ
[2015] EWCA Civ 1525
Bailii
England and Wales
Citing:
Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 January 2022; Ref: scu.565653

Halstead v Council of City of Manchester: CA 23 Oct 1997

Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the amount of interest payable was agreed.

[1997] EWCA Civ 2555, [1998] 1 All ER 33
Bailii
Compulsory Purchase Act 1965 11(1), Limitation Act 1980 9(1)
England and Wales
Citing:
Cited – Riches v Westminster Bank Ltd HL 1947
The amount of interest payable on compulsory purchase of land depends upon the value given to the land and the length of the period from the time of entry until reinstatement, the period during which the claimant is dispossessed. During that time, . .
Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
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 . .
Cited – Moore and Another v Gadd and Another CA 5-Feb-1997
The normal limitation period applies to directors’ disqualification applications. . .
Cited – Hillingdon London Borough Council v ARC Ltd ChD 12-Jun-1997
The Council had taken possession of the company’s land under compulsory purchase powers, but the company delayed its claim for compensation, and the Council now said that the claim was time barred.
Held: The claim was indeed time barred. The . .

Lists of cited by and citing cases may be incomplete.

Land, Damages, Limitation

Updated: 17 January 2022; Ref: scu.142954

Riches v Westminster Bank Ltd: HL 1947

The amount of interest payable on compulsory purchase of land depends upon the value given to the land and the length of the period from the time of entry until reinstatement, the period during which the claimant is dispossessed. During that time, and possibly thereafter the owner has neither the land nor its value, and he is compensated for non-payment of its value by the award of interest. That is the classic function of such an award.
Lord Wright said: ‘the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation.’
The discretion under the 1934 Act applies regardless whether there is or is not a contractual right to interest which underlies the cause of action. Viscount Simon said: ‘The added amount may be regarded as given to meet the injury suffered through not getting payment of the lump sum promptly, but that does not alter the fact that what is added is interest.’
As to a submission to the effect that an order for interest under section 3 could not be interest within the meaning of the Income Tax Acts because the added sum only came into existence when the judgment was given and from that moment had no accretions under the order awarding it. Viscount Simon said: ‘But I see no reason why, when the judge orders payment of interest from a past date on the amount of the main sum awarded (or on a part of it) this supplemental payment, the size of which grows from day to day by taking a fraction of so much per cent per annum of the amount on which interest is ordered, and by the payment of which further growth is stopped, should not be treated as interest attracting income tax. It is not capital. It is rather the accumulated fruit of a tree which the tree produces regularly until payment.’
Addressing the submission that the payment under section 3 was, however described, in truth damages, Lord Wright said: ‘The appellant’s contention is in any case artificial and is in my opinion erroneous because the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation.’ Later he said: ‘It was said that the sum in question could not be interest at all because interest implies a recurrence of periodical accretions, whereas this sum came to existence uno flatu by the judgment of the court and was fixed once for all. But in truth it represented the total of the periodical accretions of interest during the whole time in which payment of the debt was withheld. The sum awarded was the summation of the total of all the recurring interest items.’
Lord Simonds addressed the same submission: ‘It was further urged on behalf of the appellant that the interest ordered to be paid to him was not ‘interest of money’ for the purpose of tax because it had no existence until it was awarded and did not have the quality of being recurrent or being capable of recurrence. This argument was founded on certain observations of Lord Maugham in Moss Empires Ltd v Inland Revenue Comrs [1937] AC 785, 795, in regard to the meaning of the word ‘annual’. It would be sufficient to say that we are here dealing with words in the Income Tax Act which do not include either ‘annual’ or ‘yearly’, but in any case I do not understand why a sum which is calculated upon the footing that it accrues de die in diem has not the essential quality of recurrence in sufficient measure to bring it within the scope of income tax. It is surely irrelevant that the calculation begins on one day and ends on another. It is more important to bear in mind that it is income.’

Lord Wright, Viscount Simon, Lord Simonds
[1947] AC 390, [1947] 1 All ER 469
Law Reform (Miscellaneous Provisions) Act 1934 3(1)
England and Wales
Cited by:
Cited – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Cited – Revenue and Customs v Joint Administrators of Lehman Brothers International (Europe) SC 13-Mar-2019
The Court was asked whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 is ‘yearly interest’ within the meaning of section 874 of the Income Tax Act 2007. If so, the administrators must deduct income tax before paying interest . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 17 January 2022; Ref: scu.187522

Kitzing v Fuller: ChD 31 Mar 2016

Adjourned hearing of the claimant’s application for an interim injunction to restrain the defendant from interfering with the claimant’s sporting rights over freehold and (in part) concurrent leasehold land owned by the defendant known as Winsley Hurst Hall and situated at Burnt Yates, Harrogate in the County of North Yorkshire.

Hodge QC HHJ
[2016] EWHC 804 (Ch)
Bailii
England and Wales

Land

Updated: 16 January 2022; Ref: scu.564140

Bentray Investments Limited v Venner Time Switches Limited: ChD 1985

Stuart-Smith J discussed the circumstances under which a deed was said to have been delivered in escrow: ‘the passages to which I have referred seem to establish that the intention of the maker must be made clear, at least where the deed is physically handed to the other party. Commonsense supports that view. But even if this is not so, the court is entitled to judge the maker’s true intention in the light of what he did and said at the time, and would be unlikely to hold that he had an intention to deliver a deed in escrow when all his words and actions pointed to the contrary conclusion. [Counsel] submits that where, as here, a signed and sealed deed is handed first to the defendant’s solicitors and then by him to the plaintiff’s solicitors, the onus is upon the defendant to establish that it was a delivery in escrow. In my judgment, this is correct, but I do not propose to decide this case on the onus of proof.’

Stuart-Smith J
[1985] 1 EGLR 39
England and Wales
Cited by:
Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 15 January 2022; Ref: scu.261515

Connolly Ltd v Bellway Homes Ltd: ChD 23 Apr 2007

The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, and mutiual mistake was asserted.
Held: The contract did reflect the intention of Bellway, but any mistake was not mutual. Furthermore the court could not establish exactly what formula would have achieved the aims of the claimant, and ‘This is in truth a case where one party has subsequently come to appreciate that it should not have agreed to the inclusion of a particular term. But that is not the sort of error which enables a court to rectify the agreement. The court cannot remake the parties’ bargain just because it has turned out to be significantly to the detriment of one party, and significantly to the benefit of the other. ‘
However, the base value, which was the source of the problem had been suggested by the defendants and was so wide of the mark as a base cost as to allow an inference of dishonesty, and its proponent did not believe it represented the intended base costs. Judgment for the claimant accordingly.

[2007] EWHC 895 (Ch)
Bailii
England and Wales
Citing:
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Rowallan Group Ltd v Edgehill Portfolio No 1 Ltd ChD 19-Jan-2007
When striking out a claim for rectification of a contract on the basis of a unilateral mistake: ‘the remedy of rectification for unilateral mistake is a drastic remedy, for it has the result of imposing on the defendant to the claim a contract which . .
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 . .
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Rowallan Group Ltd v Edgehill Portfolio No 1 Ltd ChD 19-Jan-2007
When striking out a claim for rectification of a contract on the basis of a unilateral mistake: ‘the remedy of rectification for unilateral mistake is a drastic remedy, for it has the result of imposing on the defendant to the claim a contract which . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 15 January 2022; Ref: scu.251538

Henry Godfrey, Dd, President Or Master Of The College Of St Margaret And St Bernard, Commonly Called Queen’s College, In The University Of Cambridge, And The Fellows Of The Same College v Thomas Bridge Littell: 17 Nov 1829

l here a Plaintiff shews a title to some land and a confusion of boundaries, he is entitled to a commission or an issue. In this case a commission was directed.

[1829] EngR 745, (1829) Taml 221, (1829) 48 ER 88
Commonlii
England and Wales

Land

Updated: 15 January 2022; Ref: scu.322613

A v B: SCS 1589

There was an obligation sought to be registered, which contained the discharge of a reversion, and to make lands redeemable. It was alleged, That it was 50 or 60 years since the making of the said obligation, and so, according to the act of Parliament, prescribed. Answered, That because the obligation and bond thereof were heritable, et sapebant naturam haereditatis, it could not be comprehended under the act, and so was found by the Lords.

[1589] Mor 10717
Bailii
Scotland

Land

Updated: 14 January 2022; Ref: scu.563173

Sibbald v Oliphant: SCS 1 Jun 1589

Sibbald of Rankeilour, as donatar and assignee to non-entries of a part of the lands of Kilmarour, pursued Oliphant the son of umquhile Barnard Oliphant, to hear and see the said lands to be in non-entries. It was excepted by the defender, offering him to prove, that the lands were feu continually by the space of 36 years immediately preceding the intenting of the action by the pursuer, and three sasines standing successive unreduced and quarrelled, and also a confirmation of our Sovereign Lord, of certain sasines past before. It was answered, That the exception could, in no manner of ways, be relevant, except he would allege the lands to have been feu, at least by the space of 40 years irtimediately preceding the first gift of non-entries, and the action that was first pursued by the first donatar. The Lords, notwithstanding of this allegeance, found the exception relevant for the space of 36 years.

[1589] Mor 9333
Bailii
Scotland

Land

Updated: 14 January 2022; Ref: scu.563171