An applicant for the diversion of a bridleway had the right to make independent representations as to objections received from third parties.
Times 11-Dec-1997
England and Wales
Updated: 13 November 2022; Ref: scu.88615
A successor in title to the original covenantor would not pay his share of the costs of repairing and maintaining sewers he used as appurtenant to his house. The covenantee in which the relevant housing estate was vested sued for their recovery. The defence was that as the defendant had not been a party to the original covenant he could not be liable for the sums claimed. That defence succeeded at first instance.
Held: The appeal failed. The rule against enforcing the burden of positive covenant against the covenantor’s successor in title was upheld but criticised. Peter Gibson LJ noted that there was an exception to the rule that the burden of a positive covenant does not run with the land in cases where the covenantor may not take the benefit of a transaction without undertaking the burden imposed by it, and stressed the need for a correlation between the burden and the benefit the successor in title has chosen to take and his ability to choose whether or not to take the benefit.
Peter Gibson LJ, Hobhouse and Butler-Sloss LJJ
Gazette 21-Jan-1998, [1998] EWCA Civ 15, (1998) 30 HLR 1052
England and Wales
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.89788
‘This case concerns burial rights at Tottenham Park Cemetery, a privately owned cemetery in North London (the ‘Cemetery’). The claimants are the trustees of the Tottenham Park Islamic Cemetery Association (the ‘Association’) which is also referred to as the Tottenham Park Islamic Cemetery. The Association is an unincorporated association formed in 1981 to acquire and manage burial plots and cemeteries for its members who are all Sunni Muslims. The defendant is the current owner of the Cemetery.’
Ian Karet (sitting as a Deputy High Court Judge)
[2021] EWHC 764 (Ch)
England and Wales
Updated: 13 November 2022; Ref: scu.660793
Challenge to the growing of trees on land next to an airport
HH Judge Kramer
[2021] EWHC 848 (Ch)
England and Wales
Updated: 13 November 2022; Ref: scu.661642
RESTRICTIVE COVENANTS – MODIFICATION – covenant against alterations to new dwelling without consent of developer – covenantee refusing consent to enlargement of garage and creation of additional accommodation – application by original covenantor to modify or discharge covenant to permit enlargement – covenant imposed only three years before application – risk of breaches of other covenant if modification allowed – whether use reasonable – whether discretion should be exercised – s.84(1)(aa), (c), Law of Property Act 1925 – application refused
[2020] UKUT 77 (LC)
England and Wales
Updated: 13 November 2022; Ref: scu.649223
The court considered the effect of historic conveyances creating a scheme for the maintenance of roads etc within an estate.
Rix, Arden, Patten LJJ
[2013] EWCA Civ 44
England and Wales
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470804
(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 forfeiture should be available to CH and CFI on appropriate conditions. Lord Neuberger giving the judgment of the Privy Council referred to the ‘title’ of the mortgagee in the following way: ‘In equity, a mortgagee has a limited title which is available only to secure satisfaction of the debt. The security is enforceable for that purpose and no other.’ and ‘any act by way of enforcement of the security (at least if it is purely) for a collateral purpose will be ineffective, at any rate as between mortgagor and mortgagee.’
Lord Neuberger, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption
[2013] UKPC 2
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 5-May-2009
(British Virgin Islands) Shares in two companies incorporated under the BVI Business Companies Act 2004, Cukurova Finance International Ltd and Cukurova Telecoms Holdings Ltd were provided as security under two sets of equitable mortgages, one set . .
See Also – Cukurova Finance International Ltd and Others v Alfa Telecom Turkey Ltd PC 23-May-2012
(British Virgin Islands) Interlocutory issue as to who should manage the affairs of the Turkcell mobile telephone business pending the Board’s final adjudication (after a hearing which should take place this autumn) on the rights and wrongs of what . .
Cited – 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 . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 9-Jul-2013
British Virgin Islands . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 29-Jul-2013
(British Virgin Islands) . .
See Also – Cukurova Holding As v Sonera Holding Bv PC 13-May-2014
(British Virgin Islands) The appellant sought to have set aside the Final Decision of an arbitrator. . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470677
Nagpur
[1942] UKPC 28
Updated: 13 November 2022; Ref: scu.470454
Appeal against order declaring bounudaries between two properties. Whether a boundary agreement had been entered into.
Arden, Sullivan, Patten LJJ
[2012] EWCA Civ 1674
England and Wales
Updated: 13 November 2022; Ref: scu.470097
Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a covenant must be used judicially, and ‘the statute does not create any presumption in favour of the variation of a restrictive covenant where planning permission has been granted.’ However the court must have regard to the interests sought to be protected by the restrictive covenant, and the extent to which those interests will be harmed by the proposed variation, as well as to the interests of the person seeking to vary the covenant and the advantages that will accrue from the variation. That last factor may engage matters of public as well as private interest, in particular where there are said to be policy considerations in favour of the more intensive use of existing dwelling-houses. The judge was wrong to confine his attention to matters not taken into account in the planning decision. The provisions of the 1925 Act as amended and the 1985 Act differed, with the latter giving a broader discretion. It was necessary to allow also for the urgent need for additional housing in London. This reflected the purposes of the 1985 Act.
Richards LJ, Gage LJ, Lawrence Collins LJ
[2007] EWCA Civ 949, Times 14-Nov-2007, [2008] JPL 1027, [2008] 1 WLR 2656, [2007] NPC 103, [2008] 1 All ER 446, [2008] 1 EGLR 73, [2008] 1 EG 136, [2007] 42 EG 295
Housing Act 1985 610, Law of Property Act 1925 84(1)
England and Wales
Cited – Sarum Trust Ltd v Duke of Westminster 1953
Lessees asked the court for variation of the terms of their lease so as to permit further subdivision of the premises. The application failed in the county court. The landlord’s interests elsewhere might be affected if the application were granted, . .
Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – Re Martin and Another’s Application CA 10-May-1988
The applicants had agreed with the planning authority under section 37 of the 1962 Act that part of their land would be used only as a private open space. They later sought planning consent to build a house. The consent was granted on appeal to the . .
Cited – Re Snaith and Dolding’s Application LT 1995
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the . .
Cited – Re Hunt’s Application LT 1997
Application was made to relax a restrictive covenant to allow a further house to be built within a garden plot.
Held: The scheme had the primary intention of securing a relatively low density residential development of houses and bungalows. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.259767
[1848] EngR 1051, (1848) 12 QB 986, (1848) 116 ER 1140
England and Wales
Updated: 12 November 2022; Ref: scu.300601
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The appeal was allowed. The agreement allowed for this variation. It may have been the best that the purchaser could get at the price. The contract should be interpreted in the light of the circumstances then applying.
[2007] EWCA Civ 309
England and Wales
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.251397
[2001] EWCA Civ 1579
England and Wales
Updated: 12 November 2022; Ref: scu.201417
The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised by central government and subject to the political pressures as were the Claimants themselves’. The Act said ‘if sold in the open market by a willing seller’
Held: Legislation had limited the amount of compensation to be paid where there was any urgency by deeming the seller to be willing. If it is intended to rely on a complex valuation exercise, based on a computer model, a common model should be agreed. There did appear to be a possibility of double counting on some element of the claim, and limited leave was given. The parties should work together to simplify the figures, issues and presentation for the court.
When dealing with appeals from a specialist tribunal, ‘issues of law in this context are not narrowly understood.’ ‘The court can correct ‘all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings’ (R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, 862 per Lord Templeman; see also de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), p 686, para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached ‘upon an incorrect basis of fact’, due to misunderstanding or ignorance (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 321, para 53, per Lord Slynn of Hadley). A failure of reasoning may not in itself establish an error of law, but it may ‘indicate that the tribunal had never properly considered the matter . . and that the proper thought processes have not been gone through’ (Crake v Supplementary Benefits Commission [1982] 1 All ER 492, 508).’
Lord Justice Aldous Lord Justice Carnwath Sir Denis Henry
Times 03-Mar-2003, [2003] EWCA Civ 188, [2003] RVR 280, [2003] NPC 25, [2003] 9 EG 197, [2003] 1 EGLR 124
England and Wales
Cited – Wilbraham v Colclough and others 1952
. .
Appeal from – Railtrack Plc and Another v Guinness Ltd LT 11-Feb-2002
ARBITRATION – access rights – development land – value of access rights over railway to allow development – residual valuations – value of rights determined at pounds 5 million . .
Application for leave to appeal – Railtrack Plc (In Railway Administration) v Guinness Ltd CA 17-Oct-2002
Application for leave to appeal against order of lands tribunal. . .
Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.179510
UTLC RESTRICTIVE COVENANT – modification – dwellinghouse – covenant not to alter property without covenantee’s written consent – application to modify so as to permit significant extension and remodelling of existing bungalow – effect upon visual amenity – practical benefits of substantial value or advantage – injury – Law of Property Act 1925 section 84, grounds (aa) and (c) – application refused
[2012] UKUT 306 (LC)
England and Wales
Updated: 12 November 2022; Ref: scu.466665
The parties had contracted for the sale of a property subject to a residential tenancy under the 1987 Act. The purchaser appealed refusal of specific performance, the court having found that it had failed to meet a precondition for serving a notice to complete. It had agreed to discharge liabilities to the seller, and contract misstated the date on which the tenants could have served notice under the 1987 Act to pre-empt the sale. The judge had rectified the contract.
Held: Special condition 10 of the contract had been wrongly applied. Instead standard condition 6.1.2 applied so that the completion offered by the purchaser was not too late. Specific performance should have been granted.
Sir Anthony Clarke MR, Waller :LJ VPCA, LLoyd LJ
[2008] EWCA Civ 1175
Landlord and Tenant Act 1987 5
England and Wales
Cited – Union Eagle Limited v Golden Achievement Limited PC 3-Feb-1997
(Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.277311
The application sought to determine the compensation for land acquired compulsorily. The property was held under a long lease, but was severely dilapidated. Held The condition of the property was relevant both as to loss of rental and as to capital compensation. The valuation must be robust and based upon realistic assessments. The capital value was 7,500. The claimant said that when he learned that the land was to be acquired compulsorily, he had ceased to let it. To make such a claim, the claimant had to show a causal connection. None had been shown.
ACQ/117/2001
England and Wales
Updated: 12 November 2022; Ref: scu.170278
The appellant landowner had a public bridleway over his land. It passed over an old cattle grid. He had constructed a gate to the side of the track. It was not part of the public highway. He now appealed from a refusal of an order for the Council to remove cattle grid and re-instate the land.
Held: The appeal succeeded: ‘Under section 130 of the Act the highway authority has a duty to assert and protect the rights of the public to use and enjoy the highway and section 147(2) clearly contemplates that when authorising the erection of stiles, gates or other works the authority will impose whatever conditions are required to enable the right of way to be exercised without undue inconvenience. Although the power extends to authorising works such as cattle grids with by-pass gates which restrict the usable width for those on horseback, I do not think that the language of section 147 permits the erection of works which force riders, and indeed some walkers, off the bridleway altogether, even for a short distance. Stiles, which are designed for walkers to cross, and gates, which are designed to be opened by walkers or riders, in each case without leaving the highway, may be authorised provided they do not cause undue inconvenience. The clear implication is that such obstructions must not interfere to an undue extent with the right to pass along the highway at the point where they are installed.’
However the decision was one which could be taken only by the Crown Court, and the matter was remitted accordingly.
Moore-Bick LJ, King J
[2012] EWHC 603 (Admin), [2012] RTR 30, [2013] 1 WLR 743
England and Wales
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 . .
Approved – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Hampshire County Council v Gillingham and Gillingham CA 5-Apr-2000
The council obtained a county court order against the defendants to remove a wooden gate and concrete hanging post, and an injunction prohibiting them from placing a gate, fence or other obstruction on a public footpath. Attempting to defuse the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.467136
[2008] ScotCS CSOH – 54
Scotland
Updated: 12 November 2022; Ref: scu.346531
Appeal against refusal to confirm a bridleway.
[1997] EWCA Civ 2845
England and Wales
Updated: 12 November 2022; Ref: scu.143244
The Parish Council appealed against refusal of leave to seek judicial review of a decision to reject an application for certain land to be registered as a common.
Carnwath LJ
[1997] EWCA Civ 2807, [2006] Ch 43
Commons Registration Act 1965 13(b)
England and Wales
Appeal from – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council Admn 11-Jul-1996
The Parish Council sought judicial review of the county council’s decision to reject a regristation of land as a Common on the ground that the user of the land by the villagers had not been shown to be ‘as of right.’
Held: Leave to bring the . .
Applied – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Appeal from – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2022; Ref: scu.143206
If land has been donated under the 1841 Act, and the school later moves to a new site, can the original site be sold to help pay for the costs of the new school?
Lord Lloyd-Jones, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens
[2021] UKSC 13
Bailii, Bailii Press Summary, Bailii Issues-Facts
England and Wales
At ChD – Rittson-Thomas and Others v Oxfordshire County Council ChD 9-Mar-2018
. .
At CA – Rittson-Thomas and Others v Oxfordshire County Council CA 21-Feb-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2022; Ref: scu.662152
Electronic Communications Code – Code Rights – terms of agreement – consequences of failure to engage in the travelling draft procedure
[2020] UKUT 105 (LC)
England and Wales
Updated: 11 November 2022; Ref: scu.649792
[2018] EWHC 455 (Ch)
England and Wales
Appeal from – Rittson-Thomas and Others v Oxfordshire County Council CA 21-Feb-2019
. .
At ChD – Rittson-Thomas and Others v Oxfordshire County Council SC 23-Apr-2021
If land has been donated under the 1841 Act, and the school later moves to a new site, can the original site be sold to help pay for the costs of the new school? . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.605845
Patten, Hamblen, Nicola Davies LJJ
[2019] EWCA Civ 200, [2019] WLR(D) 110, [2019] 2 WLR 1397, [2019] Ch 435
Reverter of Sites Act 1987 1, School Sites Act 1841 2
England and Wales
Appeal from – Rittson-Thomas and Others v Oxfordshire County Council ChD 9-Mar-2018
. .
At CA – Rittson-Thomas and Others v Oxfordshire County Council SC 23-Apr-2021
If land has been donated under the 1841 Act, and the school later moves to a new site, can the original site be sold to help pay for the costs of the new school? . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.634074
Laws LJ, Carnwath LJ, Moore-Bick LJ
[2007] EWCA Civ 195
England and Wales
Updated: 10 November 2022; Ref: scu.250042
[2007] EWCA Civ 304
England and Wales
Updated: 10 November 2022; Ref: scu.251387
[2005] EWCA Civ 1537
England and Wales
Updated: 10 November 2022; Ref: scu.236354
[1996] 1 All ER 133
England and Wales
Cited – Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others ChD 11-Jun-1998
The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.180654
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 plan. The Ordnance Survey does not fix private boundaries. The purpose of the survey is topographical, not taxative. Even the most detailed Ordnance Survey map may not show every feature on the ground which can be used to identify the extent of the owner’s land.
Judge LJ (dissenting) said of the hedge and ditch rule: ‘I can see no basis for trivialising this principle. In large areas of the countryside it is well understood and has indeed ensured that those with a boundary formed by a hedge and ditch know exactly where they stand without recourse to legal advice or litigation.’
Lord Justice Simon Brown, Lord Justice Ward, Lord Justice Judge
Times 24-Nov-1997, Gazette 26-Nov-1997, [1997] EWCA Civ 2698, [1998] 1 WLR 881, [1998] 2 All ER 82
England and Wales
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Cited – 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 – 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 . .
Cited – Collis v Amphlett CA 1918
‘There is undoubtedly a popular belief in some parts of the country which has found its way into books that the owner of a hedge is also the owner of a space outside it; sometimes said to be four feet from the base of the bank on which the hedge . .
Cited – The Earl of Craven v Pridmore and others CA 1902
The well established presumption that the boundary of plots of land separated by a hedge and ditch, that the boundary is the hedge on the far side of the ditch is a rebuttable presumption. The question was ‘how far the presumption had been displaced . .
Cited – Vowles v Miller 9-Jul-1810
Lawrence J said: ‘The rule about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Taylor v Needham CCP 10-Feb-1810
If the Plaintiff in covenant assigns as a breach, that the Defendant did not repair, a plea that the Defendant did not break his covenant is bad on special demurrer. Although the declaration concludes by averring that so the defendant hath broken . .
Cited – Hall v Dorling and Another 26-Mar-1996
Land once conveyed by the owner, could not be again conveyed. ‘ . . if the trustees had specifically conveyed land delineated on a plan to the defendant they could not subsequently in law transfer it to the plaintiff’. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Appeal from – 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 . .
Cited – Parmar and Others v Upton CA 22-Jul-2015
The parties disputed the application of the hedge and ditch rule in settling their boundary. The appellant wished to have reliance placed upon evidence only discovered after trial.
Held: The appeal failed. The Judge was, notwithstanding the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.143097
Interest is payable after a compulsory purchase strictly in accordance with the Act, even though this might lead to a windfall gain to the landowner because of the substantial delay in payment.
Gazette 05-Nov-1997, Times 14-Nov-1997
England and Wales
Updated: 10 November 2022; Ref: scu.83367
Appeal concerning the requirements for a proprietary estoppel and the relationship between such requirements and the provisions of section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989
[2021] EWHC 637 (Ch)
England and Wales
Updated: 10 November 2022; Ref: scu.659921
Rose J
[2013] EWHC 3530 (Ch)
England and Wales
Updated: 09 November 2022; Ref: scu.518328
UTLC RESTRICTIVE COVENANT – modification – covenant restricting development to one dwelling per plot – proposal to erect additional house within grounds of existing property – objectors’ entitlement to benefit – whether Building Scheme – whether proposed use of land reasonable – whether practical benefits of substantial value or advantage secured by the restriction – whether modification would cause injury – application refused – Law of Property Act 1925, section 84(1)(aa) and (c)
PR Francis FRICS
[2012] UKUT 300 (LC)
Law of Property Act 1925 84(1(aa) 84(1)(c)
England and Wales
Cited – In re Dolphin’s Conveyance ChD 1970
The court considered whether a building scheme had been established so as to allow the mutual enforcability of restrictive covenants. A particular question arose as to the extent of the scheme involved.
Held: A building scheme was established. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.466656
Boundary dispute
Clive Freedman QC
[2012] EWHC 3521 (Ch)
England and Wales
Updated: 09 November 2022; Ref: scu.467258
H had left the matrimonial home, and W contracted for its sale, the husband registered a Class F land charge, apparently to secure payment of what he said was due to him.
Held: The registration was set aside. This had been a short marriage, and H had no intention of returning to what had been W’s house. Class F charges are to be used only to protect rights of occupancy, and not to secure financial advantage. The registration was an improper use of the procedure.
Wood J
[1982] 1 All ER 80, [1981] 1 WLR 1385
England and Wales
Updated: 09 November 2022; Ref: scu.383836
[1790] EngR 1164, (1732, 1756, 1790) Bar N 173, (1790) 94 ER 862 (G)
England and Wales
Updated: 09 November 2022; Ref: scu.364217
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few years previously a somewhat larger space was required and the surveyor for the highway authority had, without any authority from his employers, arranged to pay the owner of the adjoining land in respect of this. Later the surveyor’s action was practically repudiated by the authority.
Held: In the case of an ordinary highway running between fences, the right of passage prima facie extended to the whole of the ground between the fences, and the public were not confined to the metalled portion. The mere consent of a highway authority to an obstruction on the highway is ineffectual for the purposes of legalising it. Even if the highway authority had actually consented to any obstruction or encroachment upon the strip being part of the highway, such consent could not legalise that which was otherwise illegal.
Joyce J said: ‘It is an established maxim that once a highway always a highway. The public cannot release their rights. Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway no length of time during which it may not have been used will preclude the public from resuming the exercise of the right to use it if and when they think proper. The authorities for this are to be found in any of the ordinary text-books on the law of highways, and there is a well-known case where some of the encroachments on the roadside waste had existed for more than forty years, but it was held that no period of modern enjoyment was of any avail to deprive the public of the right they had once enjoyed.
Suppose, then, that in the year 1885 the plaintiff’s predecessor in title, as owner of the Trenowth estate, had succeeded in inclosing the strip of land now in question in the absence of effective opposition from the then highway authority, it appears to me that even uninterrupted possession for the seventeen years before the present dispute began would not and could not have legalised the encroachment. ‘
Joyce J
[1903] 2 Ch 63
England and Wales
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.320859
Parties may insist on having the indentures of a fine made to agree with the concord, by the insertion of all limitations of legal estates contained in the concord.
[1831] EngR 404, (1831) 7 Bing 338, (1831) 131 ER 130 (B)
England and Wales
Updated: 09 November 2022; Ref: scu.320282
It is open to a later encumbrancer of land who has a right to redeem a prior charge, to come to court and establish that a term in that prior charge relating to the right to redeem is an unconscionable term and if that is established the term will be of no effect for all purposes.
Lord Tomlin
(1930) 57 Ind App 168
England and Wales
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.
Updated: 09 November 2022; Ref: scu.304587
Appeal against quashing of order modifying public right of way.
[2007] EWCA Civ 334
Wildlife and Countryside Act 1981 53
England and Wales
Updated: 09 November 2022; Ref: scu.251446
Renewed application for permission to appeal from a possession order.
Chadwick LJ, Lloyd LJ
[2007] EWCA Civ 254
England and Wales
Updated: 09 November 2022; Ref: scu.250572
Appeal against possession order.
[2005] EWCA Civ 1544
England and Wales
Updated: 09 November 2022; Ref: scu.235929
[2006] EWCA Civ 12
England and Wales
Updated: 09 November 2022; Ref: scu.237734
Order for possession
Lord Justice Waller
[2004] EWCA Civ 913
England and Wales
See Also – Messer v Messer CA 19-Jan-2005
Possession of house after breakdown of relationship . .
See Also – Messer v Messer CA 19-Jan-2005
Possession of house after breakdown of relationship . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.222650
[2001] EWCA Civ 1691
England and Wales
Updated: 09 November 2022; Ref: scu.201412
[1997] EWCA Civ 2499
Coal Mining Subsidence Act 1991
England and Wales
Updated: 09 November 2022; Ref: scu.142897
A property had been bought in the husband’s name. The wife made financial contributions to repayment of the charge, and thereby acquired an interest in it. The property was later charged by the paper owner to the claimant, who sought possession under that charge. The wife resisted.
Held: The discretion of court to order the sale of a house under Act is not limited as against a party even though that party may have the prior interest. A sale ordered was ordered.
Lord Justice Roch Mr Justice Cazalet
Times 04-Nov-1997, [1997] EWCA Civ 2511
England and Wales
Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
Cited – Lloyds Bank plc v Byrne and Byrne 1993
A husband held the matrimonial home on trust for sale for himself and his wife in equal shares. The couple lived in the house. The husband and another man were in business with through a limited company, and guaranteed the its debts to the . .
Cited – Barclays Bank Plc v Hendricks and Another ChD 3-Nov-1995
The wife was co-owner of the family home. Her husband owed money to the bank. He separated from his wife and left the matrimonial home moving to another house owned by the wife. The bank obtained a charging order absolute against the husband’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142909
Application for leave to appeal against order striking out claim as abuse of process.
[1997] EWCA Civ 2520
England and Wales
See Also – Mehta v Royal Bank of Scotland Plc and others QBD 25-Jan-1999
When deciding whether an occupation of a property was by virtue of a tenancy or a licence the three Street v Mountford conditions were not necessarily conclusive where there had been no attempt to circumvent Rent Act security and other factors . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142918
The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went out together and staked out the boundary. A subsequent purchaser of the field sought to challenge the agreed line, on the basis that it conflicted with the plan attached to the conveyance.
Held: The argument was rejected. Peter Gibson LJ: ‘I have to say that it would seem to me to be somewhat absurd, in a case where there is no verbal description of the land such as would serve to identify its boundary accurately and where the plan is imprecise in showing the boundary as following a vegetation line in 1977, and where both vendor and purchasers agree its exact position, if the court were then to shut its eyes to evidence of what they agreed was the true boundary.’
Peter Gibson LJ
[1997] EWCA Civ 2539, (1997) 80 P and CR 126
England and Wales
Cited – Kingston v Phillips CA 1976
The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Piper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142937
The parties disputed a boundary between their properties. It followed a prolonged and expensive dispute over what was a small piece of land.
Held: Acknowledging the caution required before overturning a judge’s decision on the facts, there were here difficulties in the findings, and the decision could not be upheld. Appeal allowed
[1997] EWCA Civ 2476
England and Wales
Cited – The Glannibanta CA 1876
‘Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a . .
Cited – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142874
[1997] EWCA Civ 2149
England and Wales
Updated: 09 November 2022; Ref: scu.142546
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory damages under section 27 representing the difference between the vacant possession value of the property and the tenanted value of the property.
Held: The court took account of an oral agreement to surrender an assured shorthold tenancy, relied on by the landlord, in assessing damages for unlawful eviction. ‘The valuation under section 28(1)(a) of the Housing Act 1988 must include a valuation of the occupier’s ‘right to occupy’ immediately before the unlawful eviction. That is necessarily based upon an analysis of her right, whatever her intention on that day may have been.’
[1997] EWCA Civ 2118, [1998] 1 EGLR 30
Law of Property (Miscellaneous Provisions) Act 1989 2, Housing Act 1988 27 28
England and Wales
Cited – Fenner v Blake 1900
The tenant told the landlord that he wanted to vacate the premises midway during the tenancy. Relying on the oral representation, the landlord sold the premises to a third party. The tenant subsequently refused to vacate the premises and claimed . .
Cited – Elsden v Pick CA 1980
Waiver or estoppel preventing reliance upon terms of lease. The court upheld an agreement between parties to waive the strict requirements of a notice after it had been served, . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Pittalis v Grant CA 1989
A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where . .
Cited – Melville v Bruton CA 29-Mar-1996
Statutory damages awarded for a wrongful eviction must allow for other the fact that parts of the property were in occupation by others. The comparison required by the Act ‘necessarily involved valuing the unincumbered interest on a factual as . .
Cited – Tagro v Cafanec CA 1991
In a case of unlawful eviction, the only valuation evidence was that produced by the tenant and such evidence was not challenged by the landlord. The grounds of appeal included the contentions that the award of damages was excessive and bore no . .
Cited – Jones and Lee v Miah and Another CA 9-Sep-1992
The landlord should be deemed to have been in possession of the land when calculating damages for unlawful eviction. The measure of damages ‘represents the financial advantage which the landlord has gained . . . and of which it is the purpose of . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142515
There was no obligation on the Secretary of State to hold an inquiry into the existence of a public right of way after the only objection to it has been withdrawn.
Times 05-Aug-1997, [1997] EWCA Civ 2219
England and Wales
Updated: 09 November 2022; Ref: scu.87783
Right of way dispute
[2019] EWHC 1350 (Ch)
England and Wales
Updated: 09 November 2022; Ref: scu.649077
The parties disputed whether contamination of land had been caused by the defendant contractor or had been historic.
[2012] EWHC 2593 (TCC)
England and Wales
Updated: 06 November 2022; Ref: scu.465743
[2012] EWHC 2959 (Admin)
England and Wales
Updated: 06 November 2022; Ref: scu.465672
The applicant complained of the failure to protect her article 8 rights. As a traveller and heavily pregnant she had been obliged to vacate her temporary pitch.
65819/10 – HECOM, [2012] ECHR 1862
European Convention on Human Rights
Human Rights
Updated: 06 November 2022; Ref: scu.465579
Claim for right of way.
[2012] EWCA Civ 1398
England and Wales
Updated: 06 November 2022; Ref: scu.465446
[1675] EngR 1344, (1675) Jones W 245, (1675) 82 ER 129 (A)
England and Wales
Updated: 06 November 2022; Ref: scu.405469
Ejectment
[1831] EngR 406, (1831) 7 Bing 346, (1831) 131 ER 134
England and Wales
Updated: 06 November 2022; Ref: scu.320284
The vendor of land is only allowed a reasonable time within which to make his decision whether to rescind or not in reliance on a contractual term providing for this right where requisitions have been raised which he cannot fulfil.
(1864) 17 CB (NS) 137
England and Wales
Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.277562
Where the question was, whether a slip of land between some old enclosures and the highway, vested in the lord of the manor or the owner of the adjoining freehold.
Held: that evidence might be received of acts of ownership by the lord of the manor on similar slips of land not adjoining his own freehold, in various parts of the manor.
[1831] EngR 405, (1831) 7 Bing 332, (1831) 131 ER 128
England and Wales
Updated: 06 November 2022; Ref: scu.320283
[2007] EWCA Civ 567
England and Wales
Updated: 06 November 2022; Ref: scu.254358
(1997) 74 P and C R D41, [1997] EWCA Civ 2106
England and Wales
Updated: 06 November 2022; Ref: scu.142503
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 held that the easement included connection to the existing electricity supply.
Held: The defendant had taken steps to discontinue the supply to his own land: ‘ the easement extends not only to the supply of water and electricity, but to gas, telephone and the disposal of foul or surface water. It is plain that a right to the free passage of foul or surface water through sewage or drainage pipes under the servient tenement necessarily includes the right to have that foul or surface water enter the servient land from the dominant land. By a parity of reasoning, the right to an uninterrupted passage of water and electricity running the other way from outside the servient land through the servient land to the dominant land, necessarily involves the right to have the uninterrupted passage of water and electricity, not only through the servient tenement until it reaches the dominant land but also to the servient tenement. In my judgment the obligation of a servient owner is to take no positive step to prevent the entry of water or electricity onto his land as well as its subsequent passage through the servient land to the dominant land.’
Millett LJ
[1997] EWCA Civ 1373, (1997) 75 P and CR 364, [1997] NPC 52, [1997] EG 50
England and Wales
Explained – 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. . .
Cited – 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 . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.141769
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over twenty years; need to modify definitive map. In this case, it had not been a reasonable conclusion for the Secretary of State to reach that the evidence submitted in support of the application made under section 53 (5) was not such as to indicate that a right of way was reasonably alleged to subsist.
Nourse, Roch, Phillips LJJ
Gazette 23-Jul-1997, Times 22-Jul-1997, [1997] EWCA Civ 2064, [1998] 4 All ER 367, [1997] EG 114
Highways Act 1980 31, Highways Act 1981 53, Wildlife and Countryside Act 1981 Sch 14, National Parks and Access to the Countryside Act 1949
England and Wales
Appeal from – Regina v Secretary of State for Wales Ex Parte Emery QBD 24-Jun-1996
A public enquiry is necessary where there is a real dispute over the existence of a public right of way. . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Jacques v Secretary of State for the Environment CA 1995
The Inspector had found that the landowner had, by overt acts directed at users of the way in question, including the erection of locked gates and of fencing and of notices, disproved any intention on his part to dedicate.
Held: The . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Regina v Secretary of State for the Environment Ex Parte Bagshaw, Regina v Sane Ex Parte Norton and Bagshaw QBD 6-May-1994
Mr Bagshaw sought an order modifying the definitive map and statement to show a former mine track as a public right of way.
Held: A claimant seeking to establish a public path had to show evidence in support or that it was reasonable to make . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.87975
LT COMPENSATION – compulsory purchase – retail premises – acquired for comprehensive redevelopment – comparables – relevance of rent payable prior to claimants’ purchase of freehold – relevance of prices paid for properties purchased under shadow of CPO – surveyor’s.
[2007] EWLands ACQ – 76 – 2006
England and Wales
Updated: 06 November 2022; Ref: scu.260326
Michael Kent QC
[2021] EWHC 666 (QB)
Local Government Act 1972 222, Caravan Sites and Control of Development Act 1960 (
England and Wales
Updated: 05 November 2022; Ref: scu.660810
Mr Justice Marcus Smith
[2020] EWHC 563 (Ch)
England and Wales
Updated: 05 November 2022; Ref: scu.649238
The claimant challenged a compulsory purchase order made against his property under the 1985 Act.
Kenneth Parker J
[2012] EWHC 2835 (Admin)
Updated: 05 November 2022; Ref: scu.464961
UTLC COMPENSATION – compulsory purchase -preliminary issues – injurious affection – right of way – interference with right of way by development carried out on land appropriated by local authority for planning purposes – whether compensation payable on basis of ransom value – held it was not – Town and Country Planning Act 1990 s 237
[2012] UKUT 193 (LC)
England and Wales
Updated: 05 November 2022; Ref: scu.464770
[2012] EWHC 2351 (Ch)
Law of Property Act 1925 84(2)
England and Wales
Updated: 05 November 2022; Ref: scu.464602
(Ceylon) The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title.
Tenants in common cannot assert a possessory title against one another. Their possession is attributable to the title which they hold.
(Ceylon)
[1912] AC 230, [1911] UKPC 75
England and Wales
Approved – Thomas v Thomas 1835
A unity of possession of the land in and of the land in qua an easement exists, does not extinguish but only suspends the easement, where the party is seised in fee of the one parcel , and possessed for the residue of a term of the other. – Where a . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.420947
[1572] EngR 200, (1572-1616) 6 Co Rep 52, (1572) 77 ER 332
England and Wales
See Also – The Countess of Rutland’s Case 1572
. .
See Also – Countess of Rutland’s Case 1604
Popham CJ said: ‘it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.432166
[1721] EngR 26, (1721) Palm 151, (1721) 81 ER 1022 (C)
England and Wales
Updated: 05 November 2022; Ref: scu.390051
In settling the value of a copyhold fine, the tenant is not concluded by the amount of
rent he may have reserved on the premises, but may shew their value to be less.
[1831] EngR 400, (1831) 7 Bing 327, (1831) 131 ER 126
England and Wales
Updated: 05 November 2022; Ref: scu.320278
Ward LJ, Chadwick LJ, Carnwath LJ
[2007] EWCA Civ 612
Town and Country Planning Act 1990 226(1)(b)
England and Wales
Updated: 05 November 2022; Ref: scu.253743
Members of a residential association on a mobile homes park complained that the owner had failed to comply with an obligation to ensure that other residents did not breach the rules of the park, and in particular that he had allowed six mobile home owners to keep dogs.
[2001] EWCA Civ 1225
England and Wales
Updated: 05 November 2022; Ref: scu.249858
A mortgage possession order should not be made against one of two mortgagees only.
Gazette 27-Feb-1997, Times 14-Feb-1997, [1997] EWCA Civ 991
England and Wales
Updated: 05 November 2022; Ref: scu.141387
[1997] EWCA Civ 1003
England and Wales
Updated: 05 November 2022; Ref: scu.141399
Appeal by prospective purchaser of property from order that contract rescinded, and deposit forfeited.
Morritt LJ
Gazette 26-Mar-1997, Times 21-Mar-1997, [1997] EWCA Civ 1062, [1997] 1 WLR 1016
Land Registration Act 1925 110
England and Wales
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
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 – P and O Overseas Holdings Ltd v Rhys Braintree Ltd and Another CA 12-Mar-2002
The first defendant appealed the award of interest on an order for specific performance of a contract for the sale of land. It had declined to complete the purchase because the seller had not been registered as proprietor of the land, and the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.141458
The issue was whether the rights given under the section could only be exercised by owners of land on either side of the canal.
Held: The Act took rights over land and was to be construed in the case of any ambiguity against its proposers. Section 79 was a proviso intended to protect the rights of the land owners. The requirement that the canal cut through land could not be read to require ownership of land on both sides.
[1997] EWCA Civ 1089, [1997] NPC 29, [1998] JPL 153, [1997] EG 33 (CS)
Grand Junction Canal Act 1793 79
England and Wales
Cited – Proprietors of the Stourbridge Canal v Wheeley 1831
The court explained the Act: ‘The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and . .
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.141485
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the defendants. The defendant had been in default since 1984. The defendants said that the claim was in personalty only being under the assignment of the debt.
Held: There was a presumption that money recovered would be applied first in the repayment of interest. It was arguable that a 12 years’ limitation period under the general rule in Section 8 of the 1980 Act for actions on a specialty would not apply. Auld LJ said: ‘it is seriously arguable that when a mortgagee has re-possessed and has sold the security and is seeking to recover the shortfall, his claim is in simple contract whatever the nature of the instrument under which the debt was initially secured’.
As to the delay, the judge had considered the correct elements. The circumstances of a case, the issues and the length of delay, may entitle a court to infer that memories are likely to have become so dim as seriously to prejudice the case of a party and make continuation of the proceedings unfair. The defendant had suffered prejudice by the delay.
Auld LJ
[1997] EWCA Civ 882
England and Wales
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Barclays Bank v Miller CA 1990
In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave . .
Cited – National Westminster Bank Plc v Kitch CA 14-May-1996
An action to recover an overdraft debt which was secured by a mortgage is not itself a mortgage action. A claim based on a simple contract debt does not cease to be so simply because it is also secured by a charge. . .
Cited – Barnes v Glenton 1899
A contract debt had been then secured on land. The defendant pleaded limitation.
Held: The section, in not enlarging the period of recovery of a simple contract debt from 6 years to 12 years, was prohibitory and was enacted to limit existing . .
Cited – Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party) CA 1991
The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to . .
Cited – Shtun v Zaljejska CA 18-Apr-1996
Evidence of prejudice from inexcusable delay is to be examined carefully. It is not essential for a finding of prejudice in such a case that there should be evidence of the particular respects in which potential witnesses’ recollections have been . .
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.141278
Mummery LJ
[1997] EWCA Civ 822
England and Wales
Updated: 05 November 2022; Ref: scu.141218
The applicant appealed an order for the removal of a land charge. As tenant of a flat, he had fallen into dispute with the management company. Proceedings were under way for the lease to be forfeited, and in the meantime his lender obtained a possession order. He intended to claim damages for failure to repair, and he registered a land charge to protect that impending action. The landlord was now in liquidation.
Held: The use of the land charge was wholly inappropriate. The landlord being in liquidation, no charging order would now be possible. He was an unsecured creditor and this claim must proceed by way of proof in the liquidation. The charging order procedure is not available to a party who has not yet established his claim. Leave to appeal was refused.
Lord Justice Mccowan, Lord Justice Millett
[1997] EWCA Civ 835
England and Wales
Updated: 05 November 2022; Ref: scu.141231
The court refused parents leave to appeal against a mortgage possession order, rejecting their argument that children living with them had a beneficial interest in the mortgaged premises and were thus ‘in actual occupation’ so as to have overriding interests under section 70(1)(g) of the Land Registration Act 1925. A child cannot be in occupation of land so as to constitute an overriding interest.
Lord Justice Nourse said: ‘I regard it as axiomatic that minor children of the legal owner are not in actual occupation within s 70(1)(g)
The minor children are there because their parent is there. They have no right of occupation of their own.
They are only there as shadows of their parent.’ and ‘No inquiry can be made of minor children or consent obtained from them in the manner contemplated by [s 70(1)(g)], especially when they are, as here, of tender years at the material date. If the second defendant was right, lenders would never be protected. Their security could always be frustrated by simple devices.’
Nourse LJ
Times 02-Jan-1997, [1996] EWCA Civ 899
Land Registration Act 1925 70(1)(g)
England and Wales
Cited – Royal Borough of Kingston Upon Thames v Prince and Another CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.81580
[2020] EWHC 537 (Ch)
England and Wales
See Also – Brake and Others v Lowes and Others (Ruling On Strike Out of Liquidation Application) ChD 3-Mar-2020
. .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.649093
Where the extent of an obligation is defined by statute the common law cannot be invoked to widen it.
Where a canal company were bound by statute to construct to the satisfaction of certain commissioners bridges which ‘shall from time to time be supported, maintained, and kept in sufficient repair,’ the company cannot be compelled to reconstruct the bridges to carry traffic heavier than was in contemplation by the commissioners when the bridges were built.
Decision of Court of Appeal, reported 1914, 3 K.B. 1, reversed.
Lord Chancellor (Viscount Haldane), Lords Dunedin, Atkinson, Parker, and Parmoor
[1915] UKHL 918, 52 SLR 918
England and Wales
Updated: 05 November 2022; Ref: scu.620675
Morgan J
[2014] EWHC 1164 (Ch)
England and Wales
Updated: 04 November 2022; Ref: scu.523771
[2011] ScotSC 143
Scotland
Updated: 04 November 2022; Ref: scu.464021
[2012] ScotSC 44, 2012 SLT (Sh Ct) 47, 2012 GWD 13-255
Updated: 04 November 2022; Ref: scu.463910
Dobbs J
[2012] EWHC 2302 (Admin)
England and Wales
Updated: 04 November 2022; Ref: scu.463781
Arden, Aikens, Black LJJ
[2012] EWCA Civ 1064
England and Wales
Updated: 04 November 2022; Ref: scu.463713
Sir Nicholas Wall, Arden, Sullivan LJJ
[2012] EWCA Civ 1140
England and Wales
Updated: 04 November 2022; Ref: scu.463701
The claimant complained that the defendant neighbouring land owner had obstructed his right of way. The defendant counterclaimed in harassment.
Sir Nicholas Wall, Arden, Sullican LJJ
[2012] EWCA Civ 1149
England and Wales
Updated: 04 November 2022; Ref: scu.463699
Lord Neuberger MR, McFarlane, Lewison LJJ
[2012] EWCA Civ 1029
England and Wales
Updated: 04 November 2022; Ref: scu.463697
[2012] UKUT 258 (LC)
England and Wales
Updated: 04 November 2022; Ref: scu.463433
UTLC HOUSING – enforcement action – category 1 hazard – prohibition order – excess cold – RPT quashing order – whether RPT right to hold that cost of heating irrelevant to assessment of hazard and enforcement action – held that it was not right – appeal allowed
[2012] UKUT 169 (LC)
England and Wales
Updated: 04 November 2022; Ref: scu.463431
Maurice Kay VP CA, Moore-Bick, Sullivan LJJ
[2012] EWCA Civ 1048
England and Wales
Updated: 04 November 2022; Ref: scu.463272