Request for a determination that the right of way in favour of residential property over neighbouring residential properties was extinguished between 2005 and 2006 due to the actions of the Defendants’ predecessor in title, Mr Marc Ayres on the basis of proprietary estoppel on the grounds established in Lester v Woodgate
Teverson J
[2019] EWHC 1964 (Ch)
England and Wales
Updated: 17 July 2022; Ref: scu.640076
Longmore, Lewison, Coulson LJJ
[2019] EWCA Civ 1275, [2019] WLR(D) 411
Road Traffic Regulation Act 1984
England and Wales
Updated: 17 July 2022; Ref: scu.639790
The North British Railway Act 1913, sec. 41, enacts – ‘And whereas lands have from time to time been purchased or acquired by the company, the Forth Bridge Railway Company, and by joint committees incorporated by Act of Parliament or Order on which the company may be represented, adjoining to or near to railways or stations belonging to the company or the Forth Bridge Railway Company, or belonging to or worked or managed by such joint committees, but such lands are not immediately required for the purposes of the undertaking of the company or of the Forth Bridge Railway Company or of such joint committees, as the case may be, and it is expedient that further powers should be conferred upon the company and the Forth Bridge Railway Company, and such joint committees respectively, with respect to such lands: Therefore, notwithstanding anything contained in the Lands Clauses Consolidation (Scotland) Act 1845, or in any Act or Order relating to the company or the Forth Bridge Railway Company, or any such joint committees with which that Act is incorporated, the company or the Forth Bridge Railway Company or any such joint committees shall not be required to sell or dispose of any such lands or any lands acquired under the powers of this Act which may not be immediately required for such purposes but may retain, hold or use, or may lease or otherwise dispose of the same in consideration of such rent or on such other terms as the company or committee exercising the said powers may think fit.’
The North British Railway Company brought an action against the defender for a declarator that he had no right or title to object to their letting certain lands to a certain coal company for the purpose of sinking and working a new coal pit. Held ( rev. judgment of the First Division) that inasmuch as the above-quoted section applied to the lands, if superfluous, the company was entitled to the declarator asked.
Opinions that the company might not only let but sell the lands to which the section applied.
Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Atkinson, and Lord Parmoor
[1917] UKHL 102, 55 SLR 102
Scotland
Updated: 17 July 2022; Ref: scu.631016
Falk J
[2019] EWHC 440 (Ch)
England and Wales
Updated: 17 July 2022; Ref: scu.639271
[2017] NICh 23
Northern Ireland
Updated: 17 July 2022; Ref: scu.625590
Appeal against refusal of order to rectify a conveyance of 1985.
Held: The conveyance was in the nature of a voluntary settlement and in such a case what is relevant is the subjective intention of the settlor.
Sir Terence Etherton Ch, Elias, Lewison LJJ
[2013] EWCA Civ 280, [2014] 1 Ch 114, [2013] WTLR 817, [2013] 3 All ER 661, [2013] 3 WLR 556, [2013] WLR(D) 129
England and Wales
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.472062
Applications for an order requiring actions to give effect to earlier judgments
Briggs J
[2007] EWHC 2654 (Ch)
England and Wales
See Also – Red River and Another v Sheikh and Another ChD 21-May-2008
. .
See Also – Red River UK Ltd and Another v Sheikh and Another ChD 25-Apr-2008
. .
See also – Red River UK Ltd v Sheikh and Another CA 15-Dec-2008
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another ChD 9-Mar-2009
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another CA 28-Apr-2009
The parties had compromised their litigation reaching a settlement, but had not adequately informed the court. The one remaining issue had been conceded.
Held: The appeal against the costs award failed. The court should have been forewarned of . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.341752
The sale contract provided for completion to be delayed to allow the sellers to deal with a dispute. They now sought specific performance. The defendant said that the contract had been discharged.
Held: The claimant sought to rely on a variation of the agreement which had not been approved. The claim for summary judgment must therefore fail.
Patten J
[2008] EWHC 3156 (Ch)
England and Wales
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: 17 July 2022; Ref: scu.278995
[2008] EWHC 1669 (Ch)
England and Wales
Updated: 17 July 2022; Ref: scu.278218
Hodge QC J
[2008] EWHC 1582 (Ch), [2008] NPC 82, [2008] 28 EG 113 (CS)
Landlord and Tenant Act 1988 1(6)(b)
England and Wales
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Appeal from – Landlord Protect Ltd v St Anselm Development Company Ltd CA 20-Feb-2009
Guarantee beyond term was unreasonable
The tenant objected that the landlord’s conditional consent to an assignment was unreasonable. The purchaser was a dormant company which had never traded. The clause referred to ‘a respectable and responsible assignee or sub-tenant’. The tenant had . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.270707
[2008] EWHC 734 (Ch)
England and Wales
Appeal from – Ezekiel and Another v Kohali and Another CA 30-Jan-2009
Each side sought specific performance of a contract set out in a Heads of Agreement document, but one sought an abatement in the price, saying that the seller was unable to deliver the title promised. The seller replied that the document did not . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.270625
The court was asked the extent to which a beneficial tenant in common who continues in occupation of a property following the bankruptcy of the other beneficial tenant in common ought to compensate the bankrupt’s estate for that continued occupation.
Held: The 1996 Act did not provide an exhaustive regime for determining rights as between co-owners, and the judge had been wrong to require the trustee in bankruptcy to provide some basis under the Act to make his claim. If necessary the court could look to its equitable jurisdiction to find a basis for such a claim.
Blackburne J
[2008] EWHC 1505 (Ch), Times 24-Jul-2008
Trusts of Land and Appointment of Trustees Act 1996 12 815
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.270630
A leisure centre appealed a finding of liability under the 1957 Act after a customer slipped on water by a jacuzzi and injured herself, saying that the judge imposed too high a duty of care.
Held: The appeal succeeded. ‘If the claimant can prove facts which support the inference that the defendant was at fault, an evidential burden, that is, a burden to call evidence which would tend to rebut that inference, passes to the defendant. In this case, however, the facts proved by the claimant were not in my view sufficient to support the inference that the defendant was at fault. There was no evidence that the defendant knew that a significant pool of water was likely to appear in the area in which the claimant fell, or indeed anywhere else in the general area, other than at the foot of the steps leading out of the Jacuzzi, and accordingly the evidence called by the claimant did not point to the conclusion that prima facie there was a breach of duty on the part of the defendant. ‘
[2008] EWCA Civ 654
Occupiers’ Liability Act 1957 2
England and Wales
Cited – Ward v Tesco Stores Ltd CA 1976
The claimant slipped on the contents of a yoghurt pot which had spilled onto the floor of the supermarket. The defendants gave evidence of frequent inspection and sweeping of the supermarket floor with instructions to the staff to clear up spillages . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.270529
LT RESTRICTIVE COVENANT – modification – proposed detached house at entrance to exclusive cul-de-sac – practical benefits of substantial value or advantage – outlook – effect upon amenities – precedent – integrity of system of covenants – application refused – Law of Property Act 1925, ss 84(1)(aa) and (c).
[2008] EWLands LP – 56 – 2006
Law of Property Act 1925 84(1)(aa) and (c)
Updated: 17 July 2022; Ref: scu.270504
LT RESTRICTIVE COVENANT – modification – building scheme – proposed bungalow -practical benefits of substantial value or advantage – outlook – overlooking – traffic – peace and quiet – precedent – integrity of estate – application refused – Law of Property Act 1925, s 84(1)(aa).
[2008] EWLands LP – 40 – 2006
Law of Property Act 1925 84(1)(aa)
England and Wales
Updated: 17 July 2022; Ref: scu.270494
Laddie J
[2005] EWHC 3077 (Ch)
England and Wales
Updated: 17 July 2022; Ref: scu.270427
LT RESTRICTIVE COVENANT – modification – dwellinghouse – restriction preventing any permanent building or structure to be erected without seller’s consent – application to modify to permit erection of large garden shed – whether restriction obsolete – whether those entitled to benefit of restriction agreed to its modification – whether injury to objectors – application granted – nil compensation payable – Law of Property Act 1925, s84(1)(a), (aa), (b) and (c).
[2008] EWLands LP – 34 – 2006
Law of Property Act 1925 84(1)(a) (aa), (b) and (c)
England and Wales
Updated: 17 July 2022; Ref: scu.270489
[2008] EWHC 1258 (Admin)
Planning and Compulsory Purchase Act 2004 113
England and Wales
Updated: 17 July 2022; Ref: scu.270061
[2008] EWCA Civ 598
Administration of Justice Act 1970 36
England and Wales
Updated: 17 July 2022; Ref: scu.269965
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial holdings and how the Welsh land holding systems had been incorporated under English law. The claimant had established a right of wreck but not otherwise over either the foreshore or the seabed.
Lewison J
[2008] EWHC 1302 (Ch), [2008] 24 EG 141, [2008] 4 All ER 828, [2008] 2 P and CR 15
Statute of Quia Emptores 1290, Lords of Marches of Wales Act 1354, The Act of Union 1535, Treasure Act 1996, Game Act 1831
England and Wales
Cited – Corpus Christi College Oxford v Gloucestershire County Council CA 1983
The court considered the result where the freehold of what had formerly been waste of the manor became severed from the lordship.
Held: It ceased to be part of the manor. Lord Denning MR described the historical basis of the ownership of land . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Attorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
Cited – Spook Erection Ltd v Secretary of State for the Environment CA 1989
Nourse LJ explained the nature of a franchise in land: ‘The right which was granted to one Anthony Bourchier by the letters patent of 29 June 1637 was a franchise; an incorporeal hereditament which has been authoritatively defined as a royal . .
Cited – The Case of the Royal Fishery of the Banne 1610
A royal fishery did not pass by a general grant of all fisheries, because general words in a grant did not pass ‘special royalty which belongeth to the Crown by prerogative’. . .
Cited – The Rebeckah 26-Feb-1799
Lord Stowell discussed the rationale behind the inversion in cases involving the Crown of the principle that a clause is to be construed against the proposer saying that: ‘the prerogatives and rights and emoluments of the Crown being conferred upon . .
Cited – HIH Casualty and General Insurance Limited v New Hampshire Insurance Company Independent Insurance Company Limited Axa Reinsurance S A CA 21-May-2001
A claim was made under a re-insurance policy which supported film finances. The re-insurers resisted the claim on the grounds of misrepresentation. Rix LJ: ‘In principle it would seem to me that it is always admissible to look at prior contracts as . .
Cited – Viscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .
Cited – Attorney-General v Trustees of the British Museum 1903
A right to treasure trove did not pass by general words in a Crown charter, but had to be expressly granted. . .
Cited – The Attorney-General v Parmeter And Others In Re Portsmouth Harbour CEC 1811
The defendants claimed rights under a charter granted by Charles I in 1628 granting lands and marshes subject to the overflowing of the sea. The charter declared that it had been granted in consideration and as compensation for the future expense of . .
Cited – Great Eastern Railway v Goldsmid 1884
The City of London Corporation had implicitly given up a franchise consisting of an exclusive right to markets within London that had apparently been conferred on it by an Act or charter of Edward III in circumstances in which it had acquiesced for . .
Cited – Anon 1704
If a man has a right of any wreck thrown upon another’s land he has a right of way over the same land to take it: ‘Originally all wrecks were in the Crown and the King has a right of way over any man’s ground for his wreck; and the same privilege . .
Cited – Dickens v Shaw 1822
A right to ‘wreck’ will not of itself confer a title by presumption of law to the ownershipof the soil above the shore as against the Crown.
Holroyd J discussed whether a grant of a right of wreck include also any right in the land: ‘I think . .
Cited – Duke of Somerset v Fogwell 1826
Where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must be presumed) before Magna Charta, by the description of ‘separalem piscariam,’ that is an incorporeal and not a territorial . .
Cited – Berkeley Peerage case 1858
Lord St Leonards explained section 1 of the 1660 Act which removed all the ‘fruits and consequents’ of tenure in capite of the Crown: ‘Not only were all tenures in capite . . taken away, but the lands were for ever turned into free and common . .
Cited – In Re Jolly CA 1900
Mrs Jolly let a farm to her son who paid rent until 1881, but not thereafter, and her title to the farm was extinguished in 1893. She died in 1898. The question which arose was whether at her death any rent arrears remained due.
Held: The . .
Cited – Mount Carmel Investments Limited v Peter Thurlow Limited CA 1988
The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: ‘no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his . .
Cited – Feather v The Queen 1865
Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for . .
Cited – Neill v Duke of Devonshire HL 1882
The House considered the right to a several fishery in the river Blackwater. There were letters patent granted by James I and Charles I. Held; Lord Selborne LC said: ‘These written titles (if the possession and enjoyment has been consistent with . .
Cited – Walker and Another v Burton and Another CA 14-Oct-2013
The Burtons had purchased the former Hall of the village of Ireby, and been registered as proprietors of the Lordhsip of the Manor. The villagers had successfully challenged the registration. The Court now considered the circumstances in which the . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.269728
Land had been sold by administrative receivers appointed under a charge. The owner said that the lands had been sold at an undervalue.
Held: The action failed. The claimant could not show any breach of duty or that the assessments made were not reasonable. ‘It is now clearly established that a receiver appointed by a mortgagee to sell mortgaged property in order to recover or reduce the mortgage debt is effectively in the same position as the mortgagee and owes a duty in equity to all those interested in the equity of redemption to obtain a proper price for the property. He is not however a trustee of his power of sale for the mortgagor and accordingly can choose the time of sale even if that turns out to be disadvantageous to the debtor who could have recovered more had the property been sold later. ‘
Patten J
[2008] EWHC 1273 (Ch)
England and Wales
Cited – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.269727
Norris J
[2008] EWHC 1329 (Ch)
England and Wales
Updated: 17 July 2022; Ref: scu.269730
The appellant challenged a finding that though she was named as joint tenant of the property with her mother, she had no beneficial interest in it. The property had formerly been a council house tenanted by the respondent and her late husband.
Lord Neuberger of Abbotsbury said: ‘When it comes to assessing the contributions to the purchase price the claimant argues either that no account should be taken of the discount of andpound;29,415 or that it should be attributable equally to both parties. I do not agree. In the absence of authority the position seems to me to be this. The reason the property could be bought at a discount, indeed the reason that the property could be bought at all, was that the defendant had been the secure tenant of the property and had resided there in that capacity for a substantial period; see the sections of the Housing Act 1985 to which I have referred. It was therefore the defendant and solely the defendant to whom the discount of andpound;29,415 could be attributed, a fact which she exercised. Her privilege under section 123 of the 1985 Act to share her statutory right to buy with her daughter does not seem to me in any way to alter that conclusion. Sharing with a third party the right to buy in law as against the council is not the same thing as sharing the consequences of the right to buy in equity as against a third party.’
Tuckey, Neuberger, Rimer LJJ
[2008] EWCA Civ 347, [2008] 1 WLR 2695, [2008] 2 P and CR 14, [2008] 7 EG 142, [2008] 2 FLR 589, [2008] 21 EG 140, [2008] Fam Law 638, [2008] 2 EGLR 70
England and Wales
Cited – Richards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 July 2022; Ref: scu.268701
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a public right of way. The court discussed the application of prescription to public rights of way. Lord President Hope said: ‘where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.’ and ‘the occasional or irregular use of a path by hill walkers or by others who resort to the countryside can readily be distinguished from the continuous use of it by members of the public as a route from one public place to another. It seems to me to be clear, on an examination of all the later authorities, that a proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period.’
Lord President (Hope)
1992 SLT 1035, [1992] CLY 6215, 1992 SC 357
Prescription and Limitation (Scotland) Act 1973 3(3)
Scotland
Appealed to – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Appeal from – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 July 2022; Ref: scu.187767
A and B were coterminous proprietors of lands situated on the river Tay. The description in A’s titles was ‘All and haill the just and equal sunnie half of all and haill the lands of I. . . as the same is presently occupyed and possessed by A. P. . . with the just and equal half of the salmond fishings and others fishings of the saidis lands of I.’ The description in B’s titles was -‘All and haill the quarter or fourth part of the town and lands of I . . . last occupyet be J. B., and now by myself,’ as also ‘the other quarter or fourth pairt of all and haill the said town and landis of I., .. presentlie possesset by G. L., my tenant, together with the just and equal half of the salmond fishings and other fishings of the saidis lands of I.’ Prior to 1795 the whole lands of I. were held by the predecessors of A. and B. in alternate lots or kavels, and each proprietor possessed the salmon fishing ex adverso of his respective kavels. In 1795, by decreet-arbitral, the kavels were done away with, and the lands of I. were divided into two continuous parts, the one to belong to A. and the other to B. By this decreet the salmon fishings were reserved to the parties ‘according to their present boundaries.’ Held that A and B had each an absolute right of property in the salmon fishings not ex adverso of their lands, but as reserved by the decreet-arbitral, and defined by possession.
Salmon Fishing-Crown Charter.
Circumstances in which held that a Crown grant in favour of a proprietor of the salmon fishings ex adverso of certain lands which he had acquired by excambion was inoperative, the said fishings having been formerly granted to the party with whom the contract of excambion had been carried out, the fishing not having been dealt with in the excambion, and the Crown having had no possession adverse to that of the original granters.
[1877] UKHL 718, 14 SLR 718
Scotland
Updated: 15 July 2022; Ref: scu.639644
Falk J
[2019] EWHC 1937 (Ch)
England and Wales
Updated: 15 July 2022; Ref: scu.640078
Whether works preparatory to application for planning permission for works under easement were necessary.
His Honour Judge Russen QC
[2019] EW Misc 14 (CC)
England and Wales
Updated: 15 July 2022; Ref: scu.639682
Held that a reservation in a disposition of lands of the coal, with power to work, win, and carry away the same, does not entitle the person in right of the reserved power to use a mine underneath the said lands for the purpose of working coal outwith the boundaries thereof, unless the said mine runs altogether in the coal strata or in the wastes caused by the working out of the coal.
[1876] UKHL 751, 13 SLR 751
Scotland
Updated: 15 July 2022; Ref: scu.639638
Lord Justice Lloyd
[2012] EWCA Civ 1019
National Trust Act 1937 8, Law of Property Act 1925 84(1)
England and Wales
Updated: 15 July 2022; Ref: scu.463277
LT RESTRICTIVE COVENANT – modification – proposed development of two pairs of semi-detached houses – affordable housing for local needs – practical benefits of substantial value or advantage – privacy – peace and tranquillity – outlook – approach – compensation -application granted – Law of Property Act 1925, ss84(1)(aa) and (c).
[2009] EWLands LP – 15 – 2007
England and Wales
Updated: 15 July 2022; Ref: scu.341637
The defendant sought to assert adverse possession of land through the long time mooring of his boat at a wharf.
Stephen Smith QC
[2009] EWHC 954 (Ch), [2009] 19 EG 111, [2009] 4 All ER 665
England and Wales
Appeal From – The Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 July 2022; Ref: scu.344035
The parties disputed the interpretation of an overage agreement.
Thomas LJ
[2008] EWCA Civ 448
England and Wales
Updated: 14 July 2022; Ref: scu.267566
The college appealed against modifications of definitive map to upgrade two footpaths to byways open to all traffic. The college was circled by footpaths which it wished to protect when the council constructed a new bypass.
Held: The College’s appeal succeeded. If the defendant was to alter the map, the statutory procedure had to be followed precisely. The applications for the alterations had not been supported by the necessary information.
The Court considered what was meant by an application made in accordance with paragraph 1 of Schedule 14 to the 1981 Act within the meaning of section 67(6) of the 2006 Act. Dyson LJ said: ‘In my judgment, section 67(6) requires that, for the purposes of section 67(3), the application must be made strictly in accordance with paragraph 1. That is not to say that there is no scope for the application of the principle that the law is not concerned with very small things (de minimis non curat lex). Indeed this principle is explicitly recognised in regulation 8(1) of the 1993 Regulations. Thus minor departures from paragraph 1 will not invalidate an application.’
Dyson, Ward, Thomas LJJ
[2008] EWCA Civ 431, Times 08-May-2008, [2009] 1 WLR 138
Wildlife and Countryside Act 1981 53(5), Natural Environment and Rural Communities Act 2006
England and Wales
Appeal from – Winchester College, Warden and Fellows of and Another; Regina (on the Application of) v Food and Rural Affairs Admn 28-Nov-2007
The applicants challenged the refusal of the defendant to alter the definitive right of way map. . .
Cited – Maroudas v Secretary of State for Environment Food and Rural Affairs CA 18-Mar-2010
The claimant appealed against an order refusing his request to quash a footpath modification order. The request had not been signed as required.
Held: The appeal succeeded. ‘subject to the de minimis principle, an application must strictly . .
Cited – 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 . .
Cited – Trail Riders’ Fellowship and Another, Regina (on The Application of) v Dorset County Council Admn 2-Oct-2012
The claimants challenged rejection of five applications under section 5 of the 1981 Act for modification orders allowing the upgrade of routes to provide vehicular public rights of way. The applications had been submitted using digital mapping. The . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.267229
The claimants appealed against refusal by the lands tribunal to vary a restrictive covenant saying that the covenant against building no longer secured any substantial practical benefit to the neighbour.
Held: The appeal failed.
[2008] EWCA Civ 379
Law of Property Act 1925 84(1)(aa)
England and Wales
Updated: 14 July 2022; Ref: scu.266956
[2008] EWHC 742 (Ch)
England and Wales
Updated: 14 July 2022; Ref: scu.266904
Renewed application for leave to appeal against order confirming compulsory purchase order.
Pill, Keene LJJ
[2008] EWCA Civ 328
England and Wales
Updated: 14 July 2022; Ref: scu.266796
Dispute as to beneficial interests in former family home.
[2007] EWCA Civ 1531
England and Wales
Updated: 14 July 2022; Ref: scu.266564
Absent an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.
[2008] EWCA Civ 257
England and Wales
Cited – Hopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.266491
LT COMPENSATION – Compulsory purchase – acquisition of town centre site in connection with Metro scheme – planning assumptions – development costs – valuation methodology – valuation – Land Compensation Act 1961 Section 5 rule (2) – compensation awarded andpound;1,165,683.06.
[2008] EWLands CON – 19 – 2007
Updated: 14 July 2022; Ref: scu.266326
LT COMPENSATION – Land Compensation Act 1973 Part I – house affected by road alterations acquisition by agreement of right to enter land to build wall for purpose of works compensation paid pursuant to this – held claim under Part I precluded – 1973 Act s 8
[2008] EWLands LCA – 102 – 2006
England and Wales
Updated: 14 July 2022; Ref: scu.266318
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not enjoyment as of right. The agreement referred to in the proviso to section 3 is any agreement the function of which is to prevent the enjoyment of light from being deemed to be absolute and indefeasible within the meaning of section 3.
Lloyd LJ discussed the last part of section 3: ‘I consider that the phrase ‘expressly made or given for that purpose’ can be satisfied by an express provision in the relevant document which, on its true construction according to normal principles, has the effect of rendering the enjoyment of light permissive or consensual, or capable of being terminated or interfered with by the adjoining owner, and is therefore inconsistent with the enjoyment becoming absolute and indefeasible after 20 years.’ The document which is said to trigger the proviso to s.3 must be construed in context and having regard to the surrounding circumstances.
Lloyd, Lawrence Collins, Mummery LJJ
[2008] EWCA Civ 151, [2008] Ch 341, [2008] L and TR 18, [2008] 11 EG 93, [2008] NPC 29, [2008] 2 EGLR 11, [2008] 2 WLR 1096
England and Wales
Appeal from – RHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
Cited – Marlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
Cited – Salvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.266159
[2007] EWHC 2444 (QB)
England and Wales
Updated: 14 July 2022; Ref: scu.261568
Application for injunction to stop defendants occupying land in breach of planning control.
[2006] EWHC 2697 (QB)
England and Wales
Updated: 14 July 2022; Ref: scu.245960
[2006] EWHC 3088 (QB)
England and Wales
Updated: 14 July 2022; Ref: scu.247995
Application for leave to appeal – mortgagee’s possession order.
Ward LJ
[2002] EWCA Civ 1291
England and Wales
Updated: 14 July 2022; Ref: scu.217193
[2002] EWCA Civ 818
England and Wales
Updated: 14 July 2022; Ref: scu.217216
Renewed application for leave to appeal.
Chadwick LJ
[2002] EWCA Civ 817
Access to Justice Act 1999 55, European Convention on Human Rights 8 A1 FP, Administration of Justice Act 1970 36
England and Wales
Appeal from – Barclays Bank plc v Alcorn ChD 2002
Hart J said: ‘It seems to me however, that her general submission on the effect of the Human Rights Act in relationship to a mortgagee’s action for possession is correct, namely, that the matter is regulated by section 36 of the Administration of . .
Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.217136
[2017] UKFTT CR – 2017 – 0003
England and Wales
Updated: 14 July 2022; Ref: scu.644298
Adverse Possession : Intention To Possess
[2018] UKFTT 578 (PC)
England and Wales
Updated: 14 July 2022; Ref: scu.630814
Beneficial Interests, Trusts and Restrictions : Express Agreement
[2018] UKFTT 574 (PC)
England and Wales
Updated: 14 July 2022; Ref: scu.630813
Beneficial Interests, Trusts and Restrictions : Restrictions Where No Beneficial Interest
[2018] UKFTT 582 (PC)
England and Wales
Updated: 14 July 2022; Ref: scu.630812
Deeds : Execution
[2018] UKFTT 573 (PC)
England and Wales
Updated: 14 July 2022; Ref: scu.630811
A feucontract provided that the vassal should pay, in addition to the feuduty stipulated, ‘the sum of two shillings sterling of additional feuduty for every square pole of the said piece of ground on which buildings shall be erected, excepting an addition to the mansion-house and a porter’s lodge.’ A singular successor of the original vassal erected a public laundry on part of the feu. Held ( reversing the judgment of the First Division and restoring the judgment of Lord Stormonth Darling, Ordinary) that the additional feuduty was exigible only for the ground used for the buildings which had been erected, and not also for ground utilised for approaches to the buildings, and certain grass slopes forming the bank of the laundry reservoir.
Lord Chancellor (Halsbury) and Lords Shand, Davey, and Robertson
[1902] UKHL 64, 40 SLR 64
Scotland
Updated: 14 July 2022; Ref: scu.630806
Case for interim relief arising out of a dispute between landowners and operators of what is called the Fitzwilliam Hunt and Defendants protesting about the Hunt.
Freedman J
[2018] EWHC 3139 (QB)
England and Wales
Updated: 14 July 2022; Ref: scu.630745
‘The Ramblers’ Association challenge, under paragraph 2 of Schedule 2 to the Highways Act 1980, the decision of an Inspector appointed by the Secretary of State for the Environment, Food and Rural Affairs given on 16 November 2011, whereby he confirmed an order known as the Oxfordshire County Council Bodicote Footpath No 8 (Part) and Bloxham Footpath No 2 (Part) Public Path Diversion Order 2008. This order diverted part of the footpaths referred to in the order onto a different alignment over part of their route.’
Ousely J
[2012] EWHC 3333 (Admin)
England and Wales
Updated: 13 July 2022; Ref: scu.466546
[2008] EWHC 1936 (QB)
England and Wales
Updated: 13 July 2022; Ref: scu.408686
Proper construction and effect of a right of way granted by deed.
[2005] EWHC 2229 (QB)
England and Wales
Updated: 13 July 2022; Ref: scu.347407
[1859] EngR 523, (1859) 1 El and El 832, (1859) 120 ER 1123
England and Wales
Updated: 13 July 2022; Ref: scu.287875
A release of a restrictive covenant had been granted to a predecessor in title of the claimants. The defendants said that the release had been personal to the party to whom it was given, and that the covenant still bound the land.
Held: The claimant’s appeal failed. The document had in different parts defined the transferee and then later referred to the transferee and its successors in title. The situation created by the transfer was not absurd; it had just not been catered for. The covenant remained enforceable.
Jacob LJ said: ‘ It is obviously a strong thing to say that where a draftsman has actually defined a term for the purposes of his document that in some places (but not others) where he uses his chosen term he must have intended some other meaning. It is not impossible however. If, approaching the document through the eyes of the intended sort of reader (here a conveyancer), the court concludes that notwithstanding his chosen definition the draftsman just must have meant something else by the use of the term, it will so construe a document’. And
‘Such a conclusion will only be reached where if the term is given its defined meaning the result would be absurd, given the factual background, known to both parties, in which the document was prepared. Nothing less than absurdity will do – it is not enough that one conclusion makes better commercial sense than another’.
Jacob, Wall, Wilson LLJ
[2008] EWCA Civ 156
England and Wales
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.266101
[2008] EWHC 254 (Admin)
Cited – Ashbridge Investments Ltd v Minister of Housing and Local Government CA 1965
The Minister had decided to confirm a CPO of premises which were now alleged not to be a house as was required by the legislation under which the order was made.
Held: The court can interfere if the decision maker has taken into account a . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.266019
The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative because of the assents of them made by her executors.
Viscount Haldane LC
[1912] UKHL 4, [1913] AC 76
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.265973
The borrower fell into arrears when he lost his job. Benefits payments were made toward the debt under the 1992 Act. Those stopped, and the house was repossessed. The property was sold, and the claimant eventually sought to recover the shortfall. They relied on the last benefits payment as acknowledgement of the debt, saying it was paid as agent for the borrower. The borrower said that their was no relationship of agency.
Held: The Benefits Agency payments went to reduce the borrower’s liability and were for his benefit. They were made as his agent and constituted an acknowledgment of the debt.
[2008] EWCA Civ 74
Social Security (Mortgage Interest Payments) Act 1992, Limitation Act 1980 29(5)
England and Wales
Updated: 13 July 2022; Ref: scu.264658
The claimants appealed refusal of an order for specific performance of a contract for the purchase of land under the exercise of an option agreement. The defendant had conveyed the land to a subsidiary in order to defeat the option.
Held: ‘The sale by the Brewery to Rochdale was to a genuine company, for a genuine (albeit low) price, and the transaction was carried out overtly for all to see. The true nature of the transaction was precisely what it purports to have been, namely, a transaction which was intended to enable both Brewery and Rochdale to assert and rely on legal rights that would enable them to defeat the claim to enforce the option agreement.’ However there had also been an earlier purported intermediate sale to a third party, but this had not included the option land, and specific performance was ordered.
Pill, Sedley, Rimer LJJ
[2007] EWCA Civ 1461
England and Wales
Cited – Elliott and H Elliott (Builders) Ltd v Pierson ChD 1948
Harmon J: ‘At law A may contract to sell to B any defined subject matter and can enforce the contract if by the time when he is obliged to do so he has obtained a sufficient interest or can compel other interested parties to concur in the sale. It . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – Jones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
Cited – Midland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
Cited – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.264477
A large area of land had been registered as a town or village green. The company, owner of the land, had succeeded in having the registration removed. The Council appealed, question whether the procedure undertaken by the High Court on such an application was appellate or by way of a rehearing. Also the definition of a village green had changed during the time under which the use as such accrued. The court was asked which definition was to be used on the application.
Laws, Rix and Lloyd LJJ
[2008] EWCA Civ 22, [2009] 1 WLR 334, [2008] 6 EG 130, [2008] 3 All ER 736, [2008] NPC 15
England and Wales
Appeal from – Betterment Properties (Weymouth) Ltd v Dorset County Council ChD 2-Mar-2007
The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should . .
See Also – Betterment Properties (Weymouth) Ltd v Dorset County Council and Another ChD 23-Nov-2010
A claim was made for the rectification of the register of Town or Village Greens to remove the registration for their land.
Held: The register should be rectified. The user relied on had been neither peaceable nor ‘as of right’ as required. As . .
See Also – Betterment Properties (Weymouth) Ltd v James Carthy and Company Ltd CA 15-Dec-2010
Dispute as to presence of public right of way. . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.264113
[2008] EWHC 62 (Admin)
Acquisition of Land Act 1981 23
Updated: 13 July 2022; Ref: scu.264059
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to deny the claimants’ title.
Held: The appeal failed. A finding by the ECHR that a particular area falls within the contracting states’ margin of appreciation is therefore a signal to the national judge that the decision of the national authorities as to the content of rights within that area should receive appropriate respect. The court was to apply Pye -v- United Kingdom. The margin of appreciation given to a national court was not something to be retested on each adverse possession case. A person believing himself to be a tenant may still be in adverse possession, even if his belief that he is a tenant is incorrect. The statement in the pleadings did not amount to an acknowledgement.
Arden LJ, May LJ, Sir Martin Nourse
[2008] EWCA Civ 7, [2008] HRLR 20, [2008] 3 WLR 1253, [2008] UKHRR 447, [2009] Ch 1, [2008] NPC 8
Limitation Act 1980 29, Land Registration Act 1925 75(1), Human Rights Act 1998 2
England and Wales
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Applied – J A Pye (Oxford) Ltd v The United Kingdom ECHR 30-Aug-2007
UK Advers Possession Law – Not Compliant
The claimant had said that the UK law which allowed it to lose land by virtue of twelve year’s occupation by a squatter, interfered with its right to ownership of property.
Held: The UK law on adverse possession did comply with the Convention. . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Miailhe v France (No 2) ECHR 26-Sep-1996
Hudoc Preliminary objection joined to merits (victim); Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Preliminary objection rejected (ratione materiae); No violation of . .
No longer correct – Beaulane Properties Ltd v Palmer ChD 23-Mar-2005
The paper owner sought possession of land. The defendant said he had acquired a possessory title. The land was registered.
Held: The claimant’s human rights under article 1 were engaged. To be justifiable, the interference in that right had to . .
Cited – Powell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Lodge (T/A JD Lodge) v Wakefield Metropolitan Council CA 21-Mar-1995
The plaintiff had formerly been a tenant of the defendant under an informal tenancy. No rent had been paid since 1974. He claimed to have acquired the land by adverse possession. He gave evidence at trial that if he had been asked to pay rent at any . .
Cited – Re Flynn (no 2) 1969
An acknowledgement of title to restart a limitation period must be precisely focused on a disputed right. . .
Cited – Surrendra Overseas Ltd v Government of Sri Lanka 1977
A debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. An acknowledgement of part only of a debt cannot operate to acknowledge more.
Kerr J . .
Cited – Markfield Investments Ltd v Evans CA 9-Nov-2000
The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the . .
Cited – BP Properties Ltd v Buckler CA 31-Jul-1987
The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: ‘Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden . .
Cited – Horner v Cartwright CA 11-Jul-1989
Stuart Smith LJ discussed the status of pleadings in a limitation as an acknowledgement: ‘It is unnecessary for the purpose of this judgment to deal with Mr. Horner’s submission that a statement in an action once it is contained in a pleading enures . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Re Gee and Co (Woolwich) Ltd 1975
Company accounts can acknowledge the company’s liability for debts as at the date at which the accounts are drawn up even if they are not finalised and signed until after that date. . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Appeal from – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.264011
The defendant erected a sign which extended some 8ft into the plaintiff’s property.
Held: The plaintiff was entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass.
[1957] 2 QB 344
England and Wales
Cited – Bernstein of Leigh (Baron) v Skyviews and General Ltd QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.183334
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When determining the value of land compulsorily acquired by the Corporation, the Tribunal allowed for the fact that the landowner would himself have had to pay the key value of other land in order to realise the development potential of his own, and it reduced the valuation of the order land accordingly.
Held: The Tribunal awarded compensation on the basis of its emerging development value. One of the considerations was the Tribunal’s finding that there was ‘an inducement to the owner of the brown [ransom] strip to sell it as access’, because development of the claimant’s land would expedite the rezoning of other land, held together with the access strip, from allotment to industrial use. The compensation payable for a development site, should be reduced by one third, representing the price which would have had to be paid to the owner of a strip of adjoining land, which held the key to access. One-third of the development value was taken (as a principle of valuation, not of law) was an appropriate test for the value of a ransom strip.
Mann LJ said: ‘It is to be observed and critically so, that the Tribunal must search for an increase in value ‘entirely due to the scheme.’ The Pointe Gourde principle cannot diminish a pre-scheme value. Was there a particular value prior to the scheme underlying the acquisition? As it seems to me the Tribunal found that there was . .
If a premium value is ‘entirely due to the scheme underlying the acquisition’ then it must be disregarded. If it was pre-existent to the acquisition it must in my judgment be regarded. To ignore the pre-existent value would be to expropriate it without compensation and would be to contravene the fundamental principle of equivalence.’
Mann LJ
(1961) 13 P and CR 77, (1961) 180 EG 839
England and Wales
Cited – Morgan Sindall Plc v Sawston Farms (Cambs) Ltd CA 3-Dec-1998
An option had been given for the purchase of land. The claimant challenged the value assigned on exercising the option. The landowner subsequently disclosed a right of way over the land.
Held: An expert’s valuation cannot be challenged if it . .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – Llanelec Precision Engineering Co Ltd v Neath Port Talbot County Borough Council LT 3-Aug-2000
. .
Cited – Snook v Somerset County Council LT 2-Apr-2004
. .
Cited – Skupinski, Re Law of Property Act 1925 LT 30-Nov-2004
A covenant prevented new building other than for a garage. The owner proposed a three-car garage extension, but with a play-room above, for the applicant’s own use. The relevant property of the objector was not her own house, but consisted of a . .
Cited – Dutton and Another v Blaby District Council LT 17-May-2005
COMPENSATION – purchase notice – derelict land, formerly containing dwellinghouse – residential use abandoned – whether Third Schedule right to rebuild also abandoned – effect on value of absence of access for vehicles and to services. . .
Cited – Waters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .
Cited – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Mercury Communications Ltd v London and India Dock Investments Ltd 1993
. .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.180628
Grant of rights of way.
Sir Andrew Morritt VC
[2003] EWCA Civ 399
England and Wales
Updated: 13 July 2022; Ref: scu.189038
Refusal of leave to appeal to the House of Lords.
[2003] EWCA Civ 1817
England and Wales
Updated: 13 July 2022; Ref: scu.189040
The claimant took part in a planning appeal, objecting to a development. After the appeal, the inspector agreed different conditions, but without allowing the claimant to be involved. He appealed.
Held: The inspector was obliged to deal fairly. The claimant was not entitled as of right to attend but had done so, and the issues raised were at the heart of the dispute. The inspector was entitled to come to his one conclusion, but having discussed matters post hearing with the other parties he should have contacted the claimant. Decision set aside,
Sullivan J
Gazette 21-Nov-2002, Times 03-Dec-2002, Gazette 23-Jan-2003
Town and Country Planning (Hearings Procedure) (England) Rules 2000 (2000 No 1626) 14(3)
England and Wales
Cited – Fairmount Investments Ltd v Secretary of State for the Environment HL 1976
A local authority had made a compulsory purchase order which was challenged and an inquiry was held. The inspector, after the conclusion of the hearing, conducted his own inspection of the premises as a result of which he concluded that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.178244
Community Right to Bid
[2016] UKFTT CR-2015-0028 (GRC
England and Wales
Updated: 13 July 2022; Ref: scu.644240
Restrictive Covenants – Modification – Garden Land – Planning Permission for New House – Whether Restrictions Obsolete
[2020] UKUT 315 (LC)
England and Wales
Updated: 13 July 2022; Ref: scu.656350
Lord Justice Lewison
[2019] EWCA Civ 1118
England and Wales
Updated: 13 July 2022; Ref: scu.639490
The Mayor sought possession of land outside Parliament occupied for some considerable time by the defendant protesters.
Griffith Williams J
[2010] EWHC 1613 (QB)
England and Wales
Appeal from – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.420046
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the acquisition by one party of a legal title to property whenever that party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This will be so where (i) there was a common intention that both parties should have a beneficial interest and (ii) the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest’ Here the defendant had led the claimant to believe that she would have in interest in the properties, and she had suffered a real detriment on that basis. There was however no express agreement. The trusts established were different for the different properties.
Lawrence Collins J
[2005] EWHC 1478 (Ch)
Trusts of Land and Appointment of Trustees Act 1996 14, Law Reform (Miscellaneous Provisions) Act 1970 2(1), Matrimonial Proceedings and Property Act 1970 37
England and Wales
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
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 . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
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: 13 July 2022; Ref: scu.228597
Property was charged in 1973. The principal was be repayable in 1988 with interest. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted, the mortgagee had to apply to court for an order for sale in lieu of foreclosure under section 91(2) of the 1925 Act.
Held: The order was made. As to the proceeds: ‘The plaintiffs will of course be entitled, having paid the expenses of the sale, to discharge all arrears of interest down to date; that will leave a principal sum outstanding, the principal sum of andpound;19,000. There will remain in the hands of the plaintiffs, after discharging arrears of interest, and if the sale produces only the andpound;18,000 expected, a sum of, say, andpound;15,000. Now, in my mind, as the plaintiffs will have that sum of andpound;15,000 in hand they will be unable to say in future as regards that andpound;15,000 ‘Payment is not yet due, therefore we can invest it. Interest at the high rate secured by the mortgage will continue to accrue, and we will give credit for the interest produced by investing the money at a rate inevitably less than the mortgage rate.’ It seems to me that either as a necessary consequence, or as a matter of a condition which I can impose, the plaintiffs must treat any money which is in hand after payment of expenses and interest down to date as being in satisfaction pro tanto of the principal secured by the mortgage, and of all future interest on the principal so satisfied. That seems to me to be fair to both parties and to produce an equitable result.’
Templeman J
[1977] Ch 99
Law of Property Act 1925 91(2)
England and Wales
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: 13 July 2022; Ref: scu.228176
The court considered what would constitute permission to occupy land so as to destroy a claim for adverse possession. Etherton J said: ‘In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters . . Secondly [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner.’
Etherton J
Unreported 25 Jan 2001
England and Wales
Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – Totton and Eling Town Council v Caunter and Another ChD 11-Jun-2008
The council appealed against an award by the adjudicator of title by adverse possession in favour of the respondents.
Held: The appeal succeeded. On any sensible analysis from the Council’s perspective, the Caunters were entitled to remain in . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 July 2022; Ref: scu.248381
The parties owned a property together. When their relationship broke down they now disputed the shhares in which they held the property. They had signed a declartion that the property was held for themselves as beneficial joint tenants.
Lewison J
[2007] EWHC 3001 (Ch)
England and Wales
Updated: 12 July 2022; Ref: scu.262959
Mortgage possession proceedings.
[2007] EWCA Civ 1369
England and Wales
Updated: 12 July 2022; Ref: scu.262927
The land owners had sought permission to fell an oak tree subject to a tree preservation order in order to prevent further damage from its roots.
Held: The council’s appeal succeeded. The court was asked to decide whether any works to the tree could be said to be necessary if there were other possible works (not involving operations to the tree itself) which would suffice to prevent or abate the nuisance. The test under section 198(6)(b) of the 1990 Act was ‘necessary’, not ‘reasonably necessary’. But the fact that it is the stricter test of necessity (rather than the looser test of reasonable necessity) that must be applied does not lead to the conclusion that, in applying the stricter test, regard is not to be had to all the circumstances. A protected tree should remain protected unless there was a real need to lift that protection. Effect is given to that intention by reading the expression ‘so far as may be necessary for the prevention or abatement of a nuisance’ as ‘if and so far as may be necessary for the prevention or abatement of a nuisance’.
Chadwick LJ said: ‘Commonsense suggests that the task in such cases should be to identify and evaluate the various possible means of abating or preventing the nuisance – whether by doing something to the tree itself or by other works – and then to ask, in the light of that evaluation, whether it is, indeed, necessary to do something to the tree, and (if so) what.’ and ‘The better view, as it seems to me, is that Parliament intended that Section 198(6)(b) should be interpreted in a manner which gave proper weight to the word ‘necessary’. It is intended that a protected tree should remain protected unless there was a real need to lift that protection. Effect is given to that intention by reading the expression ‘so far as may be necessary for the prevention or abatement of a nuisance’ as ‘if and so far as may be necessary for the prevention or abatement of a nuisance’.
Wall LJ, Blackburne LJ, Sir John Chadwick
Times 21-Jan-2008, [2007] EWCA Civ 1353, [2008] Env LR 17, [2008] 2 EG 146, [2008] BLR 137, [2008] 1 P and CR 25, [2008] 1 WLR 1307, [2008] 1 EGLR 93, [2008] JPL 809, [2008] 4 All ER 673, [2007] NPC 139, [2008] 10 EG 168, [2008] BLGR 379
Town and Country Planning Act 1990 198(6)(b), Town and Country Planning Act 1971 60
England and Wales
Appeal from – Perrin and Another v Northampton Borough Council and others TCC 26-Sep-2006
The claimants sought an order under the Act to allow engineering operations to prevent nuisance from a tree subject to a tree preservation order. . .
Cited – Pabari v Secretary of State for Work and Pensions-And-Nilesh Pabari CA 10-Nov-2004
Housing Costs as part of child support assessment. The court considered the interpretation of the word ‘necessary’, saying that the Court must not qualify the word ‘necessary’ by reference to what might be regarded as reasonable. The word . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Smith v Oliver 1989
. .
Cited – Cardinal Vaughan Memorial School, Regina (on The Application of) v The Archbishop of Westminster and Another CA 14-Apr-2011
Parent Governors of the School disputed the appointment by the defendant of representatives to the school governors, saying that they were ineligible in that parents of current students should have been appointed in their stead if available.
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.262940
The parties had setted an arramngement for the house on splitting up. Following the agreement, she repaid the mortgage over time, and then requested the conveyance of the house under the agreement. She now appealed from an order refusing the transfer into her name.
Held: The appeal failed. Agreements between husband and wide are not generally intended to have legal effect, but ‘It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations.’
Lord Denning MR, Widgery, Karminski LJJ
[1970] EWCA Civ 6, [1970] 2 All ER 760, [1970] 1 WLR 1211
England and Wales
Updated: 12 July 2022; Ref: scu.262771
If a trustee who owns the leasehold gets in the freehold, the freehold belongs to the trust and the trustee cannot take the property for himself.
Lord Denning MR, Danckwerts, Widgery LJJ
[1968] EWCA Civ 7, [1968] 1 All ER 1111, [1968] 1 WLR 519, (1968) 19 P and CR 396
England and Wales
Updated: 12 July 2022; Ref: scu.262780
Lord Denning MR, Edmund Davies, Megaw LJJ
[1970] EWCA Civ 5, [1971] 1 QB 77, (1970) 21 P and CR 929, [1970] 3 WLR 516, [1970] 3 All ER 425
England and Wales
Updated: 12 July 2022; Ref: scu.262772
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.
Held: There was a crucial distinction between the right to a supply of water; and a right to an uninterrupted passage of water. A right of the passage of water through the service connection serving the property was not a right to be supplied with water by the servient owner at his expense, but to the uninterrupted passage of water and no more. It confers no right to insist upon the servient owner allowing water to enter his pipes. If, however, water does reach the pipes by any means whatever, that water must be permitted to pass through the pipes on the servient land so as to reach the dominant land. The servient owner is not bound to ensure that any water does reach the system, but if it does he cannot prevent its onward passage to the dominant tenement without being liable for action for interference with the easement.
Browne-Wilkinson, Griffiths LJ, Sir George Waller
(1985) 50 PandCR 9, [1985] EWCA Civ 7
England and Wales
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 . .
Explained – Duffy v Lamb (T/a Vic Lamb Developments) CA 10-Apr-1997
The plaintiff sought damages after the interruption of the electricity supply from neighbouring land by the defendant. An easement was established, but the defendant wanted the plaintiff to make his own arrangements for connection. The judge had . .
Cited – 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: 12 July 2022; Ref: scu.262656
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of contract.
Held: The claimant’s appeal failed. The respondents intended to produce a result which they believed themselves entitled to achieve. It was not enough merely to have intended an act from which the loss resulted; it had to intend that loss. That requirement was not satisfied here.
Pill, Arden, Toulson LJJ
[2007] EWCA Civ 1303, Times 20-Dec-2007, [2008] 2 WLR 904, [2008] Ch 244
England and Wales
Appeal from – 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 . .
See Also – Meretz Investments Nv v ACP Ltd QBD 27-May-2002
Meretz sued ACP for monies alleged to be due under agreements. . .
Appeal from – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.261957
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer aside as a transaction at an undervalue.
Held: The starting point is consideration of the rights of spouses for financial provision and property adjustment orders under the 1973 Act.
Held: ‘The order of the court quantifies the value of the applicant spouse’s statutory right by reference to the value of the money or property thereby ordered to be paid or transferred by the respondent spouse to the applicant. In the case of such an order, whether following contested proceedings or by way of compromise, in the absence of the usual vitiating factors of fraud, mistake or misrepresentation the one balances the other. But if any such factor is established by a trustee in bankruptcy on an application under s.339 then it will be apparent that the prima facie balance was not the true one and the transaction may be liable to be set aside.’
The Chancellor
[2007] EWCA Civ 1284
Insolvency Act 1986 339, Matrimonial Causes Act 1973 39
England and Wales
Cited – Re Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Cited – Mountney v Treharne CA 8-Aug-2002
In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been . .
Cited – Harman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
Cited – In Re Pope ex parte Dicksee 1908
In a post-nuptial settlement, the wife had given up all her rights in return for a transfer to her of property from her husband who was later made bankrupt.
Held: Sir Herbert Cozens-Hardy MR said: ‘I am unable to adopt the view that there must . .
Cited – Re Kumar (A Bankrupt), ex parte Lewis v Kumar 1993
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had . .
Cited – In re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – McMinn v McMinn 2003
A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Darke v Strout CA 28-Jan-2003
Abstention in exercising of a statutory right to apply for child maintenance may afford sufficient consideration to support a compromise of a contractual claim. . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Banque De L’Indochine v JH Rayner (Mincing Lane) Ltd 1983
The compromise of a defence may amount to sufficient consideration for the formation of a contract. . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – The Leonidas D 1985
The abandonment of a reference to arbitration might be sufficient consideration for the formation of a contract. . .
Cited – Maclurcan v Maclurcan CA 1897
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.261801
The plaintiffs sought a declaration that certain land was held upon trust for them, and required a transfer into their names.
Deeny J
[2007] NICh 5
Updated: 12 July 2022; Ref: scu.261696
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did not affect the result. The bank’s claim under estoppel was made out.
John Randall QC
[2007] EWHC 2423 (Ch)
England and Wales
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Tarjomani v Panther Securities Ltd CA 1983
The tenant disputed whether he had surrendered the property in the lease.
Held: The court considered the basis of an implied surrender: ‘In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates . .
Cited – Zionmor v Mayor and Burgesses of London Borough of Islington CA 10-Oct-1997
The council appealed a finding that the claimant, a secure tenant, had not surrendered his tenancy. He had sought to exercise his right to buy the property, but was said to have left the premises before the lease was completed. The property was . .
Cited – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – British Credit Trust Holdings v UK Insurance Limited QBD 24-Oct-2003
The claimant was permitted to amend the particulars of claim in an insurance dispute in order to seek declaratory relief in respect of insurance claims arising after the proceedings had started.
Held: The lease had been surrendered by a deed. . .
Cited – Maridive and Oil Services (SAE) and Another v CNA Insurance Company (Europe) Ltd CA 25-Mar-2002
The Civil Procedure Rules have allowed the Courts to accept an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. There is no absolute rule of law or practice which precludes an . .
Cited – Church of England Buidling Society v Piskor CA 1954
Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were . .
Cited – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another CA 1-Dec-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.260346
Mortgage possession action.
Chadwick LJ
[2001] EWCA Civ 2042
England and Wales
Updated: 12 July 2022; Ref: scu.218596
Community Right to Bid
[2017] UKFTT CR – 2017 – 0008
England and Wales
Updated: 12 July 2022; Ref: scu.644292
The freehold owner sought to recover possession of a pew in a parish church. He brought evidence that for more than 70 years he and his family had used it, repaired it, and kept it under lock and key.
Held: A legal origin for the use ought to be presumed. This was despite a suggestion that more than 200 years before possession of the pew had been acquired unlawfully. Where there has been long enjoyment of a right, the right should be presumed to have a lawful origin.
Lord Herschell
[1891] AC 228
England and Wales
Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.179837
By deeds of mortification certain sums were assigned to the Town Council of a burgh upon trust for the benefit of professorships in a University. The Town Council invested the money in land, which was conveyed to their ‘Master of Mortifications,’ a municipal functionary, and his successors in office, for behoof of the beneficiaries. Thereafter the ‘Master of Mortifications,’ instructed by the Town Council, sold the land for a yearly feuduty. The purchaser, who was in fact an agent of the Town Council, surrendered the property to them, and they were infeft upon it. Soon afterwards the Town Council, upon a representation that they were proprietors of the ground, obtained from the Crown a grant of the salmon fishings in the sea opposite the lands purchased. By these means the Town Council largely enhanced its own property and income, but restricted the beneficiaries to the feuduty.
In an action of declarator, and c., brought more than forty years afterwards by the University, with concurrence of two professors, Held (aff. judgment of Court of Session) (1) (a) that the Magistrates were trustees for the University under the mortifications, that the sale was a nullity and unprotected by prescription, and ( b) that the fishings were subject to the trust; and ( 2) that the cause should be remitted back to the Court of Session to consider the question of retrospective accounting and liability for arrears.
Lord Chancellor (Cairns), Lord Hatherley, Lord O’Hagan, Lord Blackburn, and Lord Gordon
[1877] UKHL 490, 14 SLR 490
Scotland
Updated: 12 July 2022; Ref: scu.639643
A suspension and interdict was brought against a presbytery and the heritors of a parish by a proprietor, (a portion of whose ground had been designated for an addition to the churchyard), on the grounds-(1) that he had not got sufficient notice of the meeting of presbytery at which his ground was designated, and that therefore the decree of designation then pronounced was illegal; and (2) that he had been deprived of his right to appeal to the Sheriff (in terms of the Ecclesiastical Buildings (Scotland) Act 1868, 31 and 32 Vict. c. 96) by not receiving notice of the judgment until after the time for appeal had expired.- Held (aff. judgment of Court of Session) (1) that in view of the circumstances of the case the notice was not so insufficient as to justify the setting aside of the whole proceedings as illegal; and (2) that the designation of an addition to the churchyard was a matter within the exclusive jurisdiction of the presbytery, and not subject to the review of the Court of Session.
Held that it was regular and competent for a presbytery after designating or setting apart, a piece of ground as an addition to a churchyard, to put a value upon it and appoint the tenant to remove, although they had no executorial power to enforce the decerniture to remove; and that, assuming the tenant’s interest not to be taken into view in the presbytery’s valuation, it was open to the tenant to maintain any claim he had.
[1876] UKHL 182, 14 SLR 182
Scotland
Updated: 12 July 2022; Ref: scu.639641
The fishermen of a sea-coast village were provided by the proprietor of the village with houses under tacks which fixed a certain rent, to include all dues connected with the fishery, the right of beaching the boats not being specially mentioned, although the habit and use was to beach the boats during the winter season on a certain piece of ground. In 1845 the proprietor obtained an Act of Parliament for the improvement of the harbour of the village, which inter alia authorised him to levy five shillings on all boats laid up for the winter season. He subsequently charged five shillings from each fisherman on that account, and this he did by dividing the slump rent which had formerly been paid under the tacks into specific portions-so much for house-rent and so much for the other dues, one item being five shillings for laying up boats. The village was sold in 1865, and the new proprietor continued the same system until 1874, when he asserted a right to exclude the fishermen from beaching their boats on the said piece of ground. In a suspension and interdict brought against him by the fishermen- held (aff. judgment of Court of Session) that they were entitled to use the said ground for beaching their boats, on payment of five shillings, until the proprietor provided them with another safe and convenient place, in respect that the right given by the Act to levy dues for beaching boats implied the obligation to provide ground for doing so.
[1876] UKHL 734, 13 SLR 734
Scotland
Updated: 12 July 2022; Ref: scu.639635
A party founding on an entail created by a procuratory of resignation dated in 1687, raised an action to have it found that under the Act of 1690, cap. 33, on the attainder in 1746 of one of the heirs of entail, nothing passed to the Crown but the life interest of the attainted heir, and that on his death the estates reverted to the heirs nominated in the deed. The action was dismissed (the House of Lords aff.) on the ground that it was essential to the plea stated that the deed of entail should be recorded, which had not been done.
A second action was then brought founding on a Crown charter following upon the above-mentioned procuratory of resignation, and containing a provision that on the attainder of any of the heirs of entail the estate should revert to the next heir in succession. It was maintained that the charter was a fresh grant importing a new title apart from the entail.
Held ( aff. judgment of Court of Session) (1) that the sole warrant for the charter being the procuratory of resignation, it was a mere charter by progress, the conditions of which as founded upon could not be held to affect the superior’s right, and could have no such result as was contended for; and (2) that the terms of the entail, and the history of the title following upon these down to the date of the attainder, further precluded the action.
Observed by the Lord Chancellor that even if the charter had been an original royal grant it was doubtful how far it would have protected a subject from the constitutional consequences of an attainder for high treason.
Lord Chancellor, Lord O’Hagan, Lord Blackburn, and Lord Gordon
[1877] UKHL 258, 15 SLR 258
Scotland
Updated: 12 July 2022; Ref: scu.639646
Allegation of interference with easement of right of way – adjoining businesses.
Roth J
[2017] EWHC 2455 (Ch)
England and Wales
Updated: 12 July 2022; Ref: scu.639631
Entail.-
When an estate entailed is possessed by the last substitute, it becomes in him a fee-simple estate; when failing him, it devolves upon heirs whatsoever.
[1760] UKHL 2 – Paton – 49
Scotland
Updated: 12 July 2022; Ref: scu.558282
Delivery of Deed – Prescription – Confusio – Bona Fide Consumption – Interest of Debt.-
Circumstances in which held, 1 st That debts acquired by a husband affecting his wife’s estate, do not prescribe during marriage; and that prescription does not run against these bonds during the minority of the person for whose behoof they were purchased. 2 nd, That a bond of provision granted by a brother to two sisters, in addition to their family provisions, was to be presumed in law delivered of its date, unless the contrary be proved, although it had not been delivered to them, and there was no clause dispensing with delivery. 3 d, That this bond of provision was onerous to the full extent. 4 th That the sums in said bonds were not deminished by the sisters having been alimented by their mother, while in family with her. 5 th, That the rents of the estate during Katherine’s possession were bona fide percepti et consumpti by her, and she not accountable therefor; But, 6 th, That she was not liable for behaviour as heir, but that the appellant was liable for principal and interest of the sister’s bonds, under the deduction of two-thirds of the annual rents, from their mother’s death to their brother’s death, in consideration of the aliment and necessaries furnished them by their brother.
[1760] UKHL 2 – Paton – 43
England and Wales
Updated: 12 July 2022; Ref: scu.558284
The applicants challenged the refusal of the defendant to alter the definitive right of way map.
George Bartlett QC J
[2007] EWHC 2786 (Admin), Times 08-May-2008
Natural Environment and Rural Communities Act 2006 67, Wildlife and Countryside Act 1981 Part III
England and Wales
Appeal from – Winchester College and Another, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs CA 29-Apr-2008
The college appealed against modifications of definitive map to upgrade two footpaths to byways open to all traffic. The college was circled by footpaths which it wished to protect when the council constructed a new bypass.
Held: The College’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.261598