Category: Land

Courtney v Cobb, Quinney (Easements and Profits A Prendre : Interruption): LRA 8 Feb 2011

LRA Right of way over roadside verge; Prescription Act 1832; doctrine of Lost Modern Grant; extent of right of way acquired by user; does right of way extend to vehicular use; is right of way limited to agricultural purposes only; whether use post January 1999 continued to be as of right.

Citations:

[2011] EWLandRA 2009 – 1434

Links:

Bailii

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Registered Land, Land

Updated: 15 September 2022; Ref: scu.517429

Freeman v Fairlie: PC 1828

The tenure of land in Calcutta is of the nature of freehold, and real estate will not therefore pass by an unattested Will. The Pottah granted by the Collector is not a muniment of title, but only an evidence of holding, according to a local and fiscal regulation.

Citations:

[1828] EngR 63, (1828) 1 Moo Ind App 305, (1828) 18 ER 117, [1828] UKPC 2

Links:

Commonlii, Bailii

Jurisdiction:

England and Wales

Land

Updated: 15 September 2022; Ref: scu.462915

Zinda v Bank of Scotland Plc: CA 23 Jun 2011

This appeal raises a short but important point of principle of great practical significance in relation to the standard form of suspended possession order used in mortgage cases and granted on a daily basis in hundreds of County Courts up and down the land. The appellant had fallen into arrears in the mortgage secured in favour of the respondent, and a standard form possession order made, requiring him to make the standard payments plus monthly sums to clear the arrears.
Held: The court discussed the provision of section 8 of the 1973 Act: ‘First, there is the jurisdictional gateway created by the requirement on the mortgagor to demonstrate that he is (section 36(1)) ‘likely to be able within a reasonable period to pay’ both (section 8(1)) the ‘amounts [he] would have expected to be required to pay if there had been no . . provision for earlier payment – in other words, the arrears of the instalments due to date – and (Section 8(2)) the ‘further amounts that he would have expected to be required to pay by then’ – in other words, the future instalments accruing during the reasonable period. The power of suspension exercisable by the court under Section 36 is conditional on it appearing to the court that in the event of the exercise of the power the mortgagor is likely to be able to pay the sums in question within a reasonable period. Absent such proof, the court has no jurisdiction to stay or suspend the Order for Possession.
Second, and assuming that the mortgagor surmounts the jurisdictional hurdle, the court is given a wide discretion under Sections 36(2) and (3). In particular, Section 36(3) permits the court, if it decides to stay or suspend a possession order, to attach such ‘conditions with regard to payment’ by the mortgagor of any sum secured by the mortgage as the court thinks fit. This power is not confined to the arrears of the instalments due to date or to the future instalments accruing during the reasonable period referred to in Section 36(1). It extends to ‘any’ sum secured by the mortgage including, for example, the totality of the future instalments accruing due throughout the remaining life of the mortgage.’

Judges:

Mummery, Munby LJJ, Hedley J

Citations:

[2011] EWCA Civ 706, [2011] BPIR 1802, [2011] HLR 40, [2011] 38 EG 106, [2011] 2 All ER (Comm) 839, [2011] 3 EGLR 61, [2012] 1 WLR 728, [2011] CP Rep 40, [2011] 26 EG 85

Links:

Bailii

Statutes:

Administration of Justice Act 1973 8

Jurisdiction:

England and Wales

Cited by:

Cited – Santander (UK) Plc v Parker CANI 16-Jun-2015
Appeal by Mr Parker against the judgment dismissing Mr Parker’s appeal against the Order of Master Bell refusing a stay on possession by Santander (UK) PLC of the appellant’s dwelling house.
Held: A promissory note was equivalent to cash, but . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 15 September 2022; Ref: scu.441239

Davies, Re an Application: LT 13 Aug 2008

LT RESTRICTIVE COVENANTS – modification – dwelling houses – restrictions preventing erection of more than one dwelling house on each of two adjoining plots – application to modify to permit not more than two additional dwellings in existing rear gardens – whether restrictions secured practical benefits of substantial value or advantage – whether modification would cause injury – application refused – Law of Property Act 1925 S84(1)(aa) and (c).

Citations:

[2008] EWLands LP – 65 – 2006

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Land

Updated: 15 September 2022; Ref: scu.278614

Moyce v National Grid Electricity Transmission Plc: LT 25 Apr 2008

COMPENSATION – electricity – preliminary issues – reference by consent – deed of grant for easement of overhead electricity line – provision for additional payment if planning permission granted for residential development – whether barn conversion for holiday lets residential development – held that it was – whether compensation to be assessed at date of deed or date of entitlement to additional payment – whether notice of claim given in accordance with Land Compensation Act 1961 s 4(1)

Citations:

[2008] EWLands CON – 140 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Land, Utilities

Updated: 15 September 2022; Ref: scu.278603

Commissioners for Customs and Excise v Southern Primary Housing Limited: CA 18 Nov 2003

The land owner had elected to pay VAT on the purchase of land. It sought to recover that VAT. The Commissioners appealed an order allowing that.
Held: Ther were three transactions, the purchase, the sale, and a development contract. The input tax paid in carrying out the building contract were recoverable. Was the land therefore used ‘for the purpose of the taxpayer’s taxable transaction’, namely the development contract? The cost of the land was not a component of the costs in the same way that the materials were. The mere commercial link was insufficient. The transactions had to be looked at separately in VAT law, component by component.

Judges:

Lord Justice Mantell Lord Phillips Of Worth Matravers, Mr Lord Justice Jacob

Citations:

[2003] EWCA Civ 1662, Times 21-Nov-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – BLP Group v Commissioners of Customs and Excise ECJ 6-Apr-1995
The use of taxable goods for an exempt transaction disallowed a claim against VAT input tax. The use in that provision of the words ‘for transactions’ shows that to give the right to deduct under paragraph 2, the goods or services in question must . .
Cited – Midland Bank plc v Customs and Excise Commissioners ECJ 8-Jun-2000
If there is a clear and direct link between the purchase of goods and their use in output transactions on which VAT was payable, input tax was deductible even if VAT was not deductible in respect of all the supplies. Where the link is indirect than . .
Cited – Abbey National Plc v Commissioners of Customs and Excise ECJ 22-Feb-2001
Where a part or whole of a business was sold as a going concern, not all the VAT on the expenses of the sale was to be set off against VAT. The entire amount of VAT could only be set off where the assets sold were sold as a properly identifiable . .
Cited – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
Lists of cited by and citing cases may be incomplete.

VAT, Land, Construction

Updated: 14 September 2022; Ref: scu.188107

Faraday v Carmarthenshire County Council (Formerly Llanelli Borough Council): CA 1 May 1997

Citations:

[1997] EWCA Civ 1585

Jurisdiction:

England and Wales

Citing:

See also – Faraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .

Cited by:

See also – Faraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 13 September 2022; Ref: scu.141981

Halcrow and Another v Crown Prosecution Service: Admn 10 Mar 2021

The court was asked whether the appellants had a reasonable excuse, within the meaning of the Stonehenge Regulations 1997, for entering the stone circle at Stonehenge on 4 February 2018 and 6 May 2018. The reasonable excuse was that the restrictions on entry to the stone circle impermissibly infringed the appellants’ rights under articles 9, 10 and 11 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’), to which domestic effect was given by the Human Rights Act 1998.

Judges:

Lord Justice Dingemans

Citations:

[2021] EWHC 483 (Admin)

Links:

Bailii

Statutes:

Stonehenge Regulations 1997

Jurisdiction:

England and Wales

Land, Crime, Human Rights

Updated: 13 September 2022; Ref: scu.659491

Professional Structural Services Ltd v Arnold: FTTPC 9 Aug 2019

Adverse possession of a driveway providing access to a number of properties including the parties’ – acts of possession sufficient over many years to justify finding of adverse possession – Applicant’s predecessor in title had paper title (conveyed ‘to the estate and interest of the Vendors’ but this was rejected as inadequate proof of title by HM Land Registry on the Applicant’s application for first registration, thereby prompting the adverse possession claim – Respondent’s challenge on the fact since 1998 was inconsistent – Applicant’s case preferred on facts and law.

Citations:

[2019] UKFTT 588 (PC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.645428

Lord MacDonald v Norman M’Leod, Esq: HL 2 Feb 1781

Right of Property – Possession – Part and Pertinent – Accession.- Certain rocks or islands on the coast lay between the estates of two parties. In neither of their rights or titles were there any express mention of those islands or rocks in dispute, but both claimed them, as part and pertinent of their estates, by virtue of possession exercised in pasturing sheep and currying off kelp. The island was nearer to the appellant’s estate than the respondent’s, and he contended that it must have formed a part, at one time, of his land, by accession thereto: Held the proof of long possession on the part of the respondent, of said rocks or islands as part and pertinent of his estate, by pasturing sheep, and carrying off the kelp, and every other act of ownership of which they were capable, gave him the right of property to the same.

Citations:

[1781] UKHL 2 – Paton – 583, (1781) 2 Paton 583

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 13 September 2022; Ref: scu.562110

Janet Allan, Relict of John Cameron, Late of Carntyne, and Her Children v Messrs Robertson and Others, Creditors of Richard Cameron, Now of Carntyne: HL 15 Dec 1781

Real or Personal – Provisions to Wife and Children.- Circumstances in which held, that these had not been made real burdens on the estate conveyed.

Citations:

[1781] UKHL 2 – Paton – 572, (1781) 2 Paton 572

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 13 September 2022; Ref: scu.562114

Laurence, William, Charles, Margaret, Charlotte, Thomas, Frances-Laura, George and Robert Dundases, Children of The Marriage Betwixt Sir Thomas Dundas of Kerse, Bart, and Lady Charlotte Fitzwilliam, His Wife v Sir Thomas Dundas of Kerse, Bart: HL 21 Jul 1783

Paton Revocation – Entail.- An entailer had reserved to himself power to alter and revoke the entail executed by him. He thereafter executed a will conveying the fee of his whole real estate in England and Scotland, according to the English form, and revoking all ‘former and other wills.’ Held that this latter deed was not effectual as a revocation of the entail.

Citations:

[1783] UKHL 2 – Paton – 618, (1783) 2 Paton 618

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 13 September 2022; Ref: scu.562103

Lanceley v Wirral Borough Council: UTLC 9 May 2011

COMPENSATION – Land Compensation Act 1973 Part I – depreciation by physical factors caused by the use of a new road – noise, vibration, dust, artificial lighting – comparables – compensation assessed at pounds 1,000.

Citations:

[2011] UKUT 175 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1973

Jurisdiction:

England and Wales

Land, Damages

Updated: 13 September 2022; Ref: scu.440793

Yarde v London Borough of Newham: UTLC 29 Mar 2011

COMPENSATION – compulsory purchase – dwellinghouse – whether to be valued when CPO made or on vesting date – value in good condition – comparables – cost of necessary works – whether deduction to be made for risk and profit – compensation determined at pounds 200,000

Citations:

[2011] UKUT 125 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440780

Dunbar v Blackburn With Darwen Borough Council: UTLC 20 Apr 2011

UTLC COMPENSATION – compulsory purchase – property acquired by agreement as though compulsorily acquired – bridging loan for replacement property bought 12 months before authority took possession – whether claimant entitled to payment for this – held he was not – Land Compensation Act 1961, ss 5, 10A.

Citations:

[2011] UKUT 169 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440783

George Wimpey Bristol Ltd v Gloucestershire Housing Association Ltd: UTLC 14 Mar 2011

RESTRICTIVE COVENANT – modification – open land – covenant prohibiting erection of any building – application to modify to permit construction of 17 dwellinghouses and seven garages – application refused – Law of Property Act 1925 s84(1) (aa).

Citations:

[2011] UKUT 91 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440778

Re Thistledew, 6A Nottingham Road: UTLC 18 Feb 2011

UTLC RESTRICTIVE COVENANT – application to modify a restriction so as to reduce the size of a shared vehicle turning area – whether practical benefits of substantial value or advantage secured by the restriction – whether money will be adequate compensation for loss or disadvantage -whether express or implied consent – whether modification will cause injury – application refused – Law of Property Act 1925, s84(1)(aa), (b) and (c)

Citations:

[2011] UKUT 69 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440774

Poole v South West Water Ltd: UTLC 9 Mar 2011

COMPENSATION – water – disturbance resulting from installation of water main across agricultural land – surveyor’s fee – all other surveyor’s fees in connection with the works based on Ryde’s scale (1996) plus 20 per cent – whether claimant’s surveyor entitled to a higher fee based on amount of time spent – surveyor’s fee determined on time basis at pounds 3,219.50 – Water Industry Act 1991, s159

Citations:

[2011] UKUT 84 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440779

Roberts v The Coal Authority: UTLC 28 Jan 2011

UTLC COMPENSATION – mining subsidence – damage to residential property – repairs and remediation – Schedule of works – time taken to effect works – definition of ‘dwellinghouse’ – entitlement to compensation – Coal Mining Subsidence Act 1991 section 6, and Coal Mining Subsidence (Blight and Compensation for Inconvenience During Works) Regulations 1994 – Regulation 7

Citations:

[2011] UKUT 38 (LC)

Links:

Bailii

Statutes:

Coal Mining Subsidence Act 1991 5, Coal Mining Subsidence (Blight and Compensation for Inconvenience During Works) Regulations 1994 7

Jurisdiction:

England and Wales

Land

Updated: 13 September 2022; Ref: scu.440768

Between Bristol City Council v Aldford Two Llp: UTLC 30 Mar 2011

UTLC HOUSING – enforcement action – category 1 hazard – RPT quashing improvement notice – whether lawful to do so – whether certain factors wrongly taken into account – hazard awareness notice as alternative – held this was the appropriate enforcement action – appeal dismissed – Housing Act 2004 ss 5, 28

Citations:

[2011] UKUT 130 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Housing

Updated: 13 September 2022; Ref: scu.440776

O’ Donoghue and Others v Secretary of State for Transport: UTLC 20 May 2011

UTLC COMPENSATION – compulsory purchase – tubes of subsoil and two slivers of land acquired for Channel Tunnel Rail Link – value – held nominal amount payable as no market for acquired property – compensation of pounds 50 awarded in each case.

Citations:

[2011] UKUT 203 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Damages

Updated: 13 September 2022; Ref: scu.440791

The Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties: ChD 20 Apr 2011

The claimants sought directions in the course of a claima for specific performance of contract for the sale of former fire service premises.

Judges:

Peter Smith J

Citations:

[2011] EWHC 1918 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Land

Updated: 13 September 2022; Ref: scu.434884

Tackaberry and Another v Hollis and others: ChD 13 Nov 2007

A house had been purchased in 1982 by one member of a large family. Other family members now disputed whether the land was held in trust for them. A constructive trust was asserted.
Held: The claimants had failed to establish that a constructive trust applied. The original purchaser had purchased the property in his own name and with his own money, and with loans which were repaid. No sufficiently clear terms had been identified as to the trust. ‘The fact, accepted on all sides, that after its purchase the Property was used as a dwelling and as an assembly point for the Tackaberry family does not assist the Claimants’ case. ‘The law does not recognize a concept of family property’

Judges:

Evans-Lombe J

Citations:

[2007] EWHC 2633 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sharpe Re, Ex parte Trustee of the Bankrupt v Sharpe ChD 30-Jul-1979
A couple lived in a maisonette with their aunt. The property had been purchased in the name of the husband but the aunt had contributed a partial sum towards the purchase price, while the rest of the amount was raised by way of a mortgage. The . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 13 September 2022; Ref: scu.260354

Irani v Irani and others: ChD 24 Jul 2006

The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the document was not executed as a will. The respondents said that the agreement did not satisfy s40.
Held: The document showed a desire to give effect to the transaction, and was effective. There had been a written offer with an oral acceptance, and ‘it is quite clear as a matter of law that, if an offer is made in writing and is accepted orally, that contract is in law a contract in writing and accordingly there can be no question of any unenforceability of the contract made in this case by reason of the absence of a necessary memorandum.’

Judges:

Lightman J

Citations:

[2006] EWHC 1811 (Ch)

Links:

Bailii

Statutes:

Law of Property act 1925 40

Jurisdiction:

England and Wales

Citing:

Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract, Land

Updated: 12 September 2022; Ref: scu.243393

GLN (Copenhagen) Southern Ltd v Tunbridge Wells Borough Council: CA 27 Aug 2004

Neighbouring plots included covenants to use and not to use the land as cinemas. A proposed development would have used the land which had to be so used as an access for the new cinema proposed. The claimant sought to rely upon the Act to enforce a restrictive covenant.
Held: There was nothing in the contention that the use of the Property for the purpose of connecting up the Cinema for the purpose of services would constitute a breach of the clause. The services are provided for the benefit of the building and not for the benefit of the particular use.

Judges:

Lord Justice Keene. Lord Justice Wall, Lord Justice Neuberger

Citations:

[2004] EWCA Civ 1279

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999

Jurisdiction:

England and Wales

Citing:

Cited – Norwich Union Life Insurance v British Railways Board 1987
The court made reference to the ‘torrential style of drafting which has been traditional for many years’ among draftsmen of covenants in leases. ‘The use of ordinary language to convey meaning often involves subtle discriminations which for most . .
Cited – Beaufort Developments (NI) Limited v Gilbert-Ash NI Limited and Others HL 26-Feb-1998
The contractual ability given to an arbitrator under standard JCT terms did not oust the court from assessing and prejudging the acts of the architect under a building contract. As to the means for interpreting documents, Lord Hoffmann said: ‘I . .
Cited – Tea Trade Properties Ltd v CIN Properties Ltd ChD 1990
It is not unusual for conveyances to say the same thing twice: ‘… I have never found the presumption against superfluous language particularly useful in the construction of leases. The draftsmen traditionally employ linguistic overkill and try to . .
Cited – Co-Operative Retail Services Ltd v Tesco Stores Ltd CA 20-Jan-1998
A covenant against the use of land for ‘the purpose of food retailing’ was not breached by the use of the land for associated landscaping without which immediately adjoining land could not have been used for food retailing. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 September 2022; Ref: scu.219522

Essery v Thomas: FTTPC 7 Aug 2019

Practice and Procedure – Application for adverse possession of a strip of land some 4.5 metres by 80m on the boundary between the Applicant’s paddock and the Respondents’ farm. whether the line of the current fence was the fence erected by the common vendor by a transfer to the Applicant in 2006. HELD that the fence marked the legal boundary in 2006. Order that the general boundaries were to be altered on the title plans of both properties to show the fence as the more accurate general boundary.

Citations:

[2019] UKFTT 591 (PC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 12 September 2022; Ref: scu.645416

Pallett v Broxbourne Borough Council: FTTPC 27 Aug 2019

Adverse Possession. Application for adverse possession under Schedule 6 of part of a title first registered in 2005. Respondent local authority, and owner of the disputed land, contended it was subject to a covenant to keep it as an open space under the Open Spaces Act 1906. Respondent had lodged Land Registry form NAP but failed to require the matter to be dealt with under Schedule 6 paragraph. 5 conditions. Applicants alleged that adverse possession commenced in the 1980s. Respondent denied this and also claimed that because the land was open space subject to certain bylaws, this rendered Applicant’s activities unlawful and therefore incapable of supporting the claim, seeking to distinguish Best v Chief Land Registrar [2015] EWCA (Civ) 17. HELD that Applicant’s statutory declaration in support of the application was inconsistent with their evidence in a previous case concerning adjoining land and the differences could not be adequately explained. Applicant’s evidence therefore not accepted and it was found that adverse possession (if any )had commenced no earlier than 2016/2017. The Best point did not have to be decided.

Citations:

[2019] UKFTT 593 (PC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 12 September 2022; Ref: scu.645427

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 legal estates or interests in land, not with documents that actually create or transfer such estates or interests. So a contract to transfer a freehold or a lease in the future, a contract to grant a lease in the future or a contract for a mortgage in the future are all within the reach of the section, provided of course that the ultimate subject matter is land. However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all.
[Section 2] was directed to tightening up the formalities required for contracts for the creation or transfer of interests or estates in land and it was not concerned with documents that actually create or transfer legal estates or interests in land . .’

Judges:

Lord Neuberger MR, Smith, Elias LJJ

Citations:

[2011] EWCA Civ 542

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000, Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Cited by:

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, Financial Services

Updated: 12 September 2022; Ref: scu.439649

Perrott v Bryant And Another: 5 May 1836

Where a bill was brought for the customary tithes of oysters, alleging the customary payment to be to the owners and occupiers of boats employed in the fishery, and usually moored within the parish, Held, that it was not necessary to make the dredgers for the oysters, who had no interest in the boats, but who shared in the profits of the oysters, parties to the bill. – Oyster dredgers agreeing to receive from the owners of the boats, who were their employers, a stipulated share of the profits arising from the sale of the oysters, held not to be co-adventurers with the owners. The circumstance that property situate on the sea-shore, between a sea-side town and the sea, has not been assessed to the poor’s rates of the parish in which the town is situate, is very slender evidence of the property not being within the parish.

Citations:

[1836] EngR 670, (1836) 2 Y and C Ex 61, (1836) 160 ER 312

Links:

Commonlii

Jurisdiction:

England and Wales

Rating, Agriculture, Land

Updated: 11 September 2022; Ref: scu.315002

Broughton v Bower and Another: CA 25 May 2006

The claimant said that the keeping of various animals by the defendant on their land was in breach of a restrictive covenant and of a compromise agreement which also used the phrase ‘undomesticated animals’. The judge had held that this did not include animals normally kept as pets or were akin to pets.
Held: The appeal succeeded. All of the animals listed were ‘of species which are accustomed to being kept by or to living with humans, brought under their control and tamed.’ and ‘it is an impermissible process of construction to interpret words prefaced by ‘including’ as transmuting that in which they are included into something altogether different from what it would be without them. In the present case it is plain that the words ‘including horses, ponies and geese’ cannot have that effect. All that they do is to extend the meaning of the expression so far as is necessary to prohibit the keeping of three species of domesticated animals. ‘

Judges:

Sir Martin Nourse, Lord Justice Buxton, Lord Justice Neuberger

Citations:

[2006] EWCA Civ 632

Links:

Bailii

Statutes:

Protection of Animals Act 1911 15(b)

Jurisdiction:

England and Wales

Animals, Land

Updated: 11 September 2022; Ref: scu.242181

Bride Hall Estates Limited, Openboard Limited v St George North London Limited: CA 18 Feb 2004

A contract contained an overage clause which would come into effect according to whether car parking spaces were included when calculatiing the average values.
Held: The contracts indicated that the parking spaces were to be included. Reference to ‘net internal area’ within the document at one point indicated that the parking spaces were to be included in other parts of the document.

Judges:

Lord Justice Keene Lord Justice Kay Lord Justice Carnwath

Citations:

[2004] EWCA Civ 141, Times 04-Mar-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bride Hall Estates Ltd and another v St George North London Ltd ChD 30-Apr-2003
Land was sold with an overage clause, requiring further payments after deduction of incentives. The parties disputed whether car parking facilities given to the purchasers were incentives, or part of the consideration.
Held: The clause itself . .

Cited by:

Appealed to – Bride Hall Estates Ltd and another v St George North London Ltd ChD 30-Apr-2003
Land was sold with an overage clause, requiring further payments after deduction of incentives. The parties disputed whether car parking facilities given to the purchasers were incentives, or part of the consideration.
Held: The clause itself . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 September 2022; Ref: scu.193922

Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs: CA 25 Feb 2021

‘ proper interpretation of section 119(6) of the Highways Act 1980 (‘the 1980 Act’) which deals with the process for confirmation of an order diverting the line of a public footpath, bridleway or restricted byway.’

Judges:

Lord Justice Lewis

Citations:

[2021] EWCA Civ 241

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 11 September 2022; Ref: scu.658879

James Farquhar of Gilmillscroft v The Right Hon Hugh Earl of Loudoun: HL 5 Jun 1720

Kirk Patrimony – In 1631, certain vassals in church lands advanced money to the Crown, to assist in redeeming a wadset granted to the Earl of Loudoun, the lord of erection, upon condition that they should hold of the Crown as superior, and have certain other privileges: in 1633, the superiorities of all church lands were gratuitously annexed to the Crown; and about same time vassals who should advance money for redeeming their feu duties were allowed by his majesty to treat with the treasury for that purpose, and to retain their feu duties in proportion to the sums advanced. In a question between the wadsetter and the vassals, who advanced money in 1631, it is found that they were not allowed to retain their feu duties, though they had paid money for privileges, the greatest part of which had been granted to other vassals gratuitously.

Citations:

[1720] UKHL Robertson – 303, (1720) Robertson 303

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 11 September 2022; Ref: scu.553649

Fortune and Others v Wiltshire Council and Another: ChD 12 Oct 2010

Judges:

McCahill HHJ

Citations:

[2010] EWHC B33 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 September 2022; Ref: scu.460457

Wall v Collins and Collins: Chd 11 Aug 2009

The claimant sought orders to protect his freedom to use a right of way over neighbouring land.

Judges:

Hodge QC J

Citations:

[2009] EWHC 2100 (Ch), [2007] 3 WLR 459

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 September 2022; Ref: scu.372693

St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others: ChD 6 Apr 2006

Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed in its context at the time. At the time of the deed, there were no parishes for the Roman Catholic Church. This was a missionary area. Even at the time, if all catholics in the area had taken up places, and there were places left, those could be filled by non-catholics. The decision by the trustees had been a valid exercise of the powers given to them.

Judges:

Mr Justice Lawrence Collins

Citations:

[2006] EWHC 762 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dundee General Hospital Board of Management v Bell’s Trustees HL 26-Mar-1952
The willl left a gift subject to the sole discretion of the trustees as to the ownership of the Hospital.
Held: A decision taken by trustees based upon a wrong interpretation of a deed could be set aside as avoided. Lord Normand said: ‘It . .
Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Mogridge v Clapp 1892
The Court considered a provision of the 1882 Act which required a dealing with a tenant for life to be one in good faith said that good faith. Kekewich J said that the words ‘good faith’ were to be equated with the words ‘bona fides’, and: ‘I think . .
Cited – Sieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Land, Trusts

Updated: 10 September 2022; Ref: scu.241998

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.
Held: The sub-charge did not operate to transfer to BOS all the claimant’s rights under its own charge, or particularly the right to recover possession. The sub-chargee’s rights arose only after it had itself made a formal demand for repayment. Though there was some authority for the defence asserted, there was no general proposition to that effect. The respondent had a right of possession under the facility letter and the principal charge. The mere existence of a sub-charge does not divest a principal chargee of such a right. Although it is possible for a sub-charge to have such an effect, this sub-charge did not have that effect.

Judges:

Lord Justice Clarke Lord Justice Dyson Lord Justice Wall

Citations:

[2004] EWCA Civ 568, Times 27-May-2004, Gazette 03-Jun-2004, [2004] 3 WLR 489, [2005] Ch 81

Links:

Bailii

Statutes:

Law of Property Act 1925 114(1)

Jurisdiction:

England and Wales

Citing:

Approved – Owen v Cornell 1967
The mere fact of a sub-mortgage did not prevent the principal mortgagee from exercising his rights under the principal mortgage. ‘The fact was that the legal estate in the term of 3,000 years still remained in the head mortgagee, notwithstanding . .
Cited – Four-Maids Ltd v Dudley Marshall (Properties) Ltd 1957
A mortgagee may under common law go into possession before the ink is dry on the mortgage unless there is something in the contract, express or by implication, whereby he has contracted himself out of that right. He has the right because he has a . .
Approved – Regent Oil Co Ltd v JA Gregory (Hatch End) Ltd CA 1966
No general distinction is to be drawn between the two types of mortgage and sub-mortgage. The court considered the practice for a mortgagor to attorn tenant to his mortgagee. The tenancy contained no covenants and was merely a device to give the . .
Cited – 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 . .

Cited by:

Cited – Paragon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
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.

Land

Updated: 10 September 2022; Ref: scu.197002

Edwards v Marshall Lee: ChD 1975

The parties contracted for the sale and purchase of land. A mortgage receipt was executed by a different company (Barclays Bank Trust Co ltd, not Barclays Bank Ltd) and therefore did not operate as a statutory receipt to discharge it. The plaintiff purchaser requisitioned a discharge. The defendant replied with a confirmation of release from both banks, but the plaintiff refused to complete and sought return of his deposit.
Held: The receipt did show that the money had been paid and the mortgage discharged. The receipt implied an authority to act on behalf of the original chargee, even if it did not strictly comply. There was no defect in the title. The second receipt, in any event satisfied the requisition.

Judges:

Brightman J

Citations:

(1975) 235 EG 901, Times 18-Jun-1975

Statutes:

Law of Property Act 1925 115

Jurisdiction:

England and Wales

Cited by:

Considered – Aero Properties Ltd and Another v Citycrest Properties Ltd and Another ChD 6-Feb-2002
Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 September 2022; Ref: scu.183151

Williams and Another v Broadoak Private Finance Ltd and Others: ChD 4 Apr 2018

Application for an order under paragraph 71 of Schedule B1 to the Insolvency Act 1986 (as amended) seeking the court’s permission to dispose of the freehold land known as Pier Hotel and situated at Hamilton Street, Birkenhead as if it were not subject to various security interests together with an order as to the application of the sale proceeds up to a limit of some pounds 4.48 million-odd.

Citations:

[2018] EWHC 1107 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Land

Updated: 10 September 2022; Ref: scu.618774

Gotobed v Pridmore: CA 1971

The court considered whether the long term non-user of an easement could amount to its abandonment.
Held: Buckley LJ said: ‘To establish abandonment of an easement the conduct of the dominant owner must, in our judgement have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement . . abandonment is not, we think, to be likely in the third owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding they may have no present a use for it.’

Judges:

Buckley LJ

Citations:

(1971) EG 759

Jurisdiction:

England and Wales

Cited by:

Cited – Benn v Hardinge CA 13-Oct-1992
The court declined to find an intention on the part of the dominant land owner to abandon a right of way even though no use had been made of that right of way for one hundred and seventy five years because the dominant owner had other access to the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 September 2022; Ref: scu.510890

Wylde and Others v Waverley Borough Council: Admn 9 Mar 2017

The claimants challenged the procurement methods of the respondent in acquiring land to support a development. The Court considered their standing to bring such proceedings.
Held: Arden LJ’s observations in Chandler (and Richards J’s in Kathro) had not been intended to suggest that anyone who did not have an ‘ulterior’ or ‘improper’ motive would have standing, but: ‘The approach taken by the Court of Appeal in Chandler’s case [2010] PTSR 749 is in my view clearly grounded in a conventional approach to an assessment of standing. However, that conventional approach, focused upon the purpose and policy of legislation being invoked, leads to a much more restrictive qualification for standing in procurement cases than would apply in judicial review generally.
It is clear from the 2006 Regulations . . that the purpose of those Regulations and the Directive which lies behind them, is firstly, to provide for an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and secondly, to provide a bespoke system of remedies for those parties who are directly involved in competing for such contracts and participating in the market for them. This regime is quite clearly tightly focused on those directly engaged with and actively seeking the benefit of obtaining public contracts that fall within the scope of the 2006 Regulations. The public interest is no doubt served by these aims and objectives of the 2006 Regulations (for instance, by fostering value for money and the objective evaluation of bids for public works), but that is very different from saying that it follows that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It is in my view entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who is not an economic operator, to only those who ‘can show that performance of the competitive tendering procedure . . might have led to a different outcome that would have had a direct impact on him’.’
Thus, Dove J held at [41] that, whilst a trade association might satisfy the test, a council tax payer or concerned local resident or member of the local authority cannot without more bring themselves within it, because the procurement decision would have no direct impact on them. Dove J said: ‘It follows that I do not feel able to follow the approach which was taken by Lang J in Gottlieb’s case . . for the following reasons. Firstly, it is pertinent to note in my opinion that Lang J recognised that for the claimant in that case to be found to have standing to bring the claim it would be necessary to distinguish Chandler’s case. For the reasons I have already given that must be right. I am, however, unable to accept Lang J’s reasons for distinguishing Chandler’s case and reaching the conclusions which she did. Her grounds for distinguishing the claimant in Gottlieb’s case from Chandler’s case, set out in para 153, related to considerations of ulterior motive, which she considered existed in Chandler’s case but which did not arise in the case before her as the claimant genuinely wanted to have an open competition for the procurement of the development partner for the development. The difficulty with that analysis is that in my view it does not engage with the reason why there is the restricted test for standing set out in Chandler’s case, namely the policy, aims and objectives of the 2006 Regulations and their focus on the interests of economic operators. As I have set out above, in my view what was being examined in para 78 of the Court of Appeal’s decision in Chandler’s case was not directly related to ulterior motive but rather a demonstration of the distance between the interests of the claimant and the policy and purpose of the public procurement regime. It appears clear that had the Chandler test been applied in Gottlieb’s case the claimant in that case would not have established that he had standing to bring the claim.’

Judges:

Dove J

Citations:

[2017] PTSR 1245, [2017] EWHC 466 (Admin), [2017] WLR(D) 210

Links:

Bailii, WLRD

Statutes:

Senior Courts Act 1981, Public Contracts Regulations 2006, Parliament and Council Directive 2004/18/EC

Jurisdiction:

England and Wales

Cited by:

Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Lists of cited by and citing cases may be incomplete.

Land, Administrative, European

Updated: 09 September 2022; Ref: scu.579641

The Commissioners and Trustees of The Forfeited Estates v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator: HL 1 Mar 1720

Estates forfeited by vassals were acquired by the trustees for a Papist superior, but were forfeited again by the Papist’s treason.

Citations:

[1720] UKHL Robertson – 280, (1720) Robertson 280

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 08 September 2022; Ref: scu.553643

The Commissioners and Trustees of The Forfeited Estates v Sir Robert Grierson, of Lagg, Bart: HL 30 Mar 1720

Forfeiture – Tailzie – A father executes an entail in favour of his son; the son incurs an irritancy, but before declarator is attainted of treason: the Court of Session found that the estate returned to the father, though there was no declarator of the irritancy, and that the irritancy was not purgeable:- upon appeal, the judgment was found null, the Court not having jurisdiction.
The estate being held by the son upon a base infeftment from the father, the procurators of resignation in the hands of the Crown not having been executed, and an act of parliament having declared, that the estates of vassals attainted were to go to superiors continuing loyal; the Court upon this act adjudged the estate to the father; but their judgment was reversed upon appeal.

Citations:

[1720] UKHL Robertson – 298, (1720) Robertson 298

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 08 September 2022; Ref: scu.553644