Category: Land

Chatsworth Estates Company v Fewell: 1931

The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had suggested that the covenants may be modified by the Lands Tribunal, but he made no application.
Held: The area was ‘mainly’ residential, although many flats had been erected and a few boarding houses and schools had come into existence in ‘technical breach of the covenants’. The covenants remained enforceable although a court may rule that a restrictive covenant has ceased to be enforceable through obsolescence.
Farwell J discussed the defence put forward that the character of the area had changed: ‘But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose.
Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief. ‘

Judges:

Farwell J

Citations:

[1931] 1 Ch 224

Statutes:

Law of Property Act 1925

Cited by:

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

Land

Updated: 01 May 2022; Ref: scu.263765

Sutherland v Thomson: 1876

Once a servitude right and its scope are established, it ‘must be rendered as little burdensome to the servient tenement as is consistent with its fair exercise.’

Judges:

Lord Gifford

Citations:

(1876) 3 R 485

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 01 May 2022; Ref: scu.260033

Middleton v Magnay: 1864

The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed a lien to secure repayment to him of expenditure on improvements undertaken by him pursuant to a term in the contract.
Held: The claim succeeded to the extent of the vendor’s interest. In law the contract took effect as one to assign such interest as the vendor did have.

Judges:

Page-Wood V-C

Citations:

(1864) 2 HandM 233

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259720

Levy v Stogdon: 1898

Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld.

Judges:

Stirling J

Citations:

(1898) 1 Ch.478

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.259716

Rose v Watson: HL 7 Mar 1864

The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a claim for specific performance made against him. He now claimed against the vendor’s successors in title to the land contracted to be sold the purchasers asserting a lien over that land to secure the repayment to them of the deposits paid under the contract.
Held: The purchasers’ claim succeeded. He was entitled, so far as the payments extended, to claim a lien on the estate for their amount, and to enforce that claim against the assignees of the vendor.
Lord Westbury said: ‘I think that your Lordships will agree with me that the case is determinable by principles which are very simple and very clear, and which have long been established in the Courts.
When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate.
My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money.
Then, my Lords, if that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the obvious question arises, is the purchaser to be deprived of the interest in the estate which he has acquired by that bona fide payment? And yet, my Lords that he ought to be so deprived is the whole controversy of the Appellants at your Bar. ‘
Lord Cranworth said: ‘There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase-money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent.
It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships’ House, we are able to lay down a rule that may conclusively guide such questions for the future.’

Judges:

Lord Westbury, Lord Cranworth

Citations:

(1864) 10 HLC 671, (1864) 33 LJCh 385, [1864] EngR 300, (1864) 10 HLC 672, (1864) 11 ER 1187

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259714

Sarum Trust Ltd v Duke of Westminster: 1953

Lessees asked the court for variation of the terms of their lease so as to permit further subdivision of the premises. The application failed in the county court. The landlord’s interests elsewhere might be affected if the application were granted, by leading to further applications of a similar kind; that the landlord’s objection to an increase of density of the population was reasonable; and that there would be no advantage to the public in making the variation.
Held: The lessees submitted that where planning permission had been granted the court should vary the terms of the lease, its discretion being limited to how, and on what terms and conditions, the planning permission should be carried out, but the court rejected the submission. The general subject-matter of section 163 of the 1936 Act was against the contention that ‘may’ in the section should be construed as ‘shall’, and that the judge had been entitled to come to the conclusion he had reached.

Citations:

[1953] CPL 86

Statutes:

Housing Act 1936 163, Housing Act 1949 11

Jurisdiction:

England and Wales

Cited by:

Cited – Lawntown Ltd v Camenzuli and Another CA 10-Oct-2007
Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 01 May 2022; Ref: scu.260192

Kennedy v MacDonald: 14 Nov 1988

Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right.

Judges:

Sheriff Principal Caplan

Citations:

1988 GWD 40-1653

Jurisdiction:

Scotland

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.260026

Kettlewell v Watson: 1884

A vendor’s lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings.

Citations:

(1884) 26 Ch D 501

Cited by:

Analysed – Barclays Bank Plc v Estates and Commercial Limited CA 20-Feb-1996
Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to . .
Cited – Bank of Scotland Plc v King and others ChD 23-Nov-2007
The parties contracted to buy and sell a property. The lending bank sought possession, saying that it had advanced the money which had been spent acquirng the property. The defendant purchasers said that completion had not taken place, the full . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.261517

Murrayfield Ice Rink Ltd v Scottish Rugby Union Trustees: 1973

The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as ‘a mere servitude right.’

Judges:

Lord Justice Clerk Grant

Citations:

1973 SC 21

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 01 May 2022; Ref: scu.260020

Biggs v Hoddinott: 1898

The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money.

Citations:

[1898] 2 Ch 307

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259691

Liford’s Case: 1614

The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to repair or maintain the land but only to do necessary work in a reasonable manner.

Citations:

(1614) 11 Co Rep 46b

Jurisdiction:

England and Wales

Citing:

See Also – Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18 1220
. .
See Also – Richard Liford’s Case 1572
. .

Cited by:

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.

Land

Updated: 01 May 2022; Ref: scu.259153

Charles v Beach: 1993

The parties shared a right of way over land. The common way could be used for most of its length, except for an intervening flowerbed on the land of the servient owner.
Held: The existence of the flowerbed was insufficiently permanent or substantial to qualify the express terms of the grant.
Waite LJ said: ‘Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to override the instruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal.’ and concluded
‘When all these considerations are borne in mind, the intention that is properly to be imputed to the common vendor is in my judgment an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that this interpretation would carry with it the right to call upon the servient owner to abandon his flowerbed at any point where the dominant owner desired to exercise a right of access does not in my view involve a consequence sufficiently drastic to contradict the plain language of the grant. Nor can it be affected in retrospect by the fact that Miss Walker was a lady who never drove a car and never sought to exercise vehicular access rights in her lifetime. The right was given to her and to her successors in title in language that is too plain to be contradicted by any reference to the contemporaneous topography.’

Judges:

Waite LJ

Citations:

[1993] EGCS 124

Cited by:

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

Land

Updated: 01 May 2022; Ref: scu.254437

Pinnington v Gallard: 1853

Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to Mr Dearle, and another to Mr Moss. An existing track through Mr Dearle’s lot gave access to Mr Moss’ lot and was used for that purpose for several years after the sale, but there had been no express grant or reservation of a right of way. The use was later disputed by the defendant, Mr Dearle’s successor, but was confirmed by the court.
Held: It could not be ascertained which grant came first. If the grant to Mr Moss had come first, the right over the retained land of Mr Dickinson was covered by well-established principles of implied grant. However: ‘Secondly, assume that the conveyance to Mr. Dearle was executed the first. In this case the Rye Holme closes were for a short period of time the property of Mr. Dickinson after the property in the land conveyed to Mr. Dearle had passed out of him. There is no doubt apparently a greater difficulty in holding the right of way to exist in this case than in the other; but according to the same very great authority the law is the same, for (Sergeant Williams’) note proceeds thus: ‘ So it is when he grants the land and reserves the close to himself;’ and he cites several authorities which fully bear him out.
It no doubt seems extraordinary that a man should have a right which certainly derogates from his own grant; but the law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor 2 Lutw.1487, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation.’ A grantee of land might claim a right of way of necessity over the grantor’s land even though there were prospects of an alternative access over land of a third party.

Judges:

Baron Martin

Citations:

(1853) 9 Ex 1

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.253408

Golden Lion Hotel v Carter: 1965

A lease of a plot of land fronting a road contained a covenant by the lessor, who was also the owner of land with a hotel on the opposite side of the road, not to build on the hotel site except to a specified extent. Subsequently, the lessee acquired the freehold reversion. The successor to the hotel site brought an action for a declaration that, the lease having been extinguished by merger, the covenant was no longer enforceable.
Held: On the facts there had been merger, and the covenant was accordingly unenforceable. The court rejected the defendant’s argument that ‘though the leases no longer exist a corresponding right to enforce the covenants in equity against the plaintiff remains attached to the houses until the date when the leases would have expired.’ There need be ‘nothing unconscionable’ in a party taking advantage of a conveyancer’s mistake for a neighbour. As to the intention to merge the lease, Cross J said: ‘it is possible, though no doubt unlikely, that (the relevant parties) intended to give up any right to enforce the covenant in the respective leases against the plaintiff, and even if one assumes-which is much more likely-that they did not so intend and that the positive declarations that the lease should merge in the freeholds were inserted per incuriam, there is nothing unconscionable in the plaintiff, who was not concerned in the matter, taking advantage of the faulty conveyancing.’

Judges:

Cross J

Citations:

[1965] 2 All ER 506

Citing:

Distinguished – Birmingham Joint Stock Co v Lea 1877
The court considered whether a covenant in a lease survived its extinction: ‘though the old under-lease was gone it was clearly part of the arrangement that the defendant should remain subject to the covenant and that accordingly he remained bound . .

Cited by:

Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 01 May 2022; Ref: scu.252417

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 be either money or physical property given by the purchaser in order to bring the case within the exception. In my opinion, the release of a right or the compromise of a claim, not being a merely colourable right or claim, may suffice to constitute a person a ‘purchaser’ within the meaning of section 47′.
Buckley LJ disagreed: ‘The purchaser for valuable consideration within this section must be, I think, a person who gives such a valuable consideration as justifies his being described as a purchaser or buyer. That is only satisfied when the valuable consideration is money or property or something capable of being measured by money. It does not, I think, extend to the surrender of such a right as the right to relief for matrimonial offences.’

Judges:

Sir Herbert Cozens-Hardy MR

Citations:

[1908] 2 KB 169

Statutes:

Bankruptcy Act 1883 47

Jurisdiction:

England and Wales

Cited by:

Cited – Re Abbot (A Bankrupt), ex parte Trustee Of The Property Of The Bankrupt v Abbot QBD 1983
An ancillary relief order was made in December 1978, following a compromise agreement. It provided for the sale of the former matrimonial home and the payment to the wife from the proceeds of sale of andpound;18,000. The husband was adjudicated . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – Haines v Hill and Another CA 5-Dec-2007
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Land

Updated: 01 May 2022; Ref: scu.253164

Re Whaley: 1908

Items affixed to a room may become fixtures if the purpose of its affixing be that ‘of creating a beautiful room as a whole.’

Judges:

Neville J

Citations:

[1908] 1 Ch 615

Jurisdiction:

England and Wales

Cited by:

Cited – Berkley v Poulett and others CA 29-Oct-1976
Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.252428

Barr’s Contract, Moorwell Holdings Ltd v Barr: 1956

Barr_Contract1956

The parties contracted for the sale and purchase of lands with a date fixed for completion. The National Conditions of sale were used. The vendors served a notice to complete on the day after the purchasers should have completed, requiring completion within 28 days. When the purchasers again failed, they sought to forfeit the deposit.
Held: The conditions required a reasonable period betwee the notice to complete and the new date made of the essence. The period of 28 days was unreasonably short because the vendors knew the purchasers would not be able to complete within that time period. In the result the notice to complete was ineffective to allow the vendor to rescind and to forfeit the deposit.

Citations:

[1956] 2 All ER 853, [1956] 1 Ch 551, [1956] 100 Sol Jo 550

Land

Updated: 01 May 2022; Ref: scu.252425

Clark v Cogge: 1607

A grantee of land shall have the benefit of an implied right of way of the grantor’s land where necessary: ‘the case was, the one sells land and afterwards the vendee, by reason thereof, claims a way over the plaintiff’s land, there being no other convenient way adjoining: and, whether this were a lawful claim was the question. And it was resolved without argument, but the way it remained, and that he might well justify the using thereof, because it is a thing of necessity; for otherwise he could not have any profit of his land: et e converso, if a man hath four closes lying together, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved unto him by the law; and there is not any extinguishment of a way by having both lands.’

Citations:

(1607) Cro Jac 170, [1607] 79 ER 149, [1791] EngR 208, (1791) Cro Jac 170, (1791) 79 ER 149 (A)

Links:

Commonlii

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.253270

Hunt v Luck: 1901

The court considered the nature of constructive notice. Farwell J said: ‘Constructive notice is the knowledge which the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from his knowing something which ought to have put him on further enquiry or from wilfully abstaining from inquiry to avoid notice.’

Judges:

Farwell J

Citations:

(1901) 1 Ch 45

Cited by:

Appeal from – Hunt v Luck CA 1902
Dr Hunt owned properties for which the rents were collected by his agent. The land were conveyed to a Mr Gilbert, who then mortgaged them. After the doctor’s death, his personal representatives challenged the validity of the conveyance. When the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.252545

Flight v Booth: 24 Nov 1834

The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades also.
Held: The purchaser was entitled to rescind the contract and recover his deposit. Even though a misdescription may be unintended, where it is a material and substantial point, and a court could infer that the purchaser would not have bid for the property, the purchaser is not restricted to recovering compensation but may choose to rescind.

Judges:

Tindal CJ

Citations:

[1834] 1 Bing NC 370, [1834] 1 Scott 190, [1834] 131 ER 1160, [1834] EngR 1087

Links:

Commonlii

Cited by:

Applied – In re Puckett and Smith’s Contract CA 1902
Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser’s intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable . .
Cited – Cleaver and Others v Schyde Investments Ltd CA 29-Jul-2011
The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 May 2022; Ref: scu.252354

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 already transferred his interests to W. H was bankrupted, and his trustee applied under Section 339. The trustee relied on both paragraphs (a) and (c) of Section 339(3). He said that the consideration supporting the transfer of the bankrupt’s interest was a release of such claims as she might have had under the 1973 Act, sections 23-25.
Held: The assertion failed. The transfer of the property happened before the divorce and there was no evidence to support the contention that the transfer was in return for the Respondent agreeing not to apply for further capital provision under Sections 23-25. Ferns J said: ‘Re Abbott, although it is a decision on Section 42 of the Act of 1914, is applicable to section 339 to the extent that it decides that a compromise of a claim to a provision in matrimonial proceedings is capable of being consideration in money or money’s worth’.
W’s counsel submitted that W had provided consideration. Ferns J said: ‘I would add that even if I had accepted the argument that there was such a compromise of Dr. Gupta’s prospective claim for capital provision as was contended for on her behalf, it appears to me that I would have been driven to substantially the same conclusion. The transfer of Mr. Kumar’s interest in 43, Broadwalk was a disposal of his only remaining capital asset of any significance. I cannot believe that any divorce court would have so exercised its jurisdiction under section 24 of the Matrimonial Causes Act 1973 as to require Mr. Kumar to transfer to Dr. Gupta, who had a superior earning capacity, substantially the whole of his capital, leaving him without the means to contribute from capital to the cost of acquiring a separate home for himself. In my view, in all the circumstances of this case as I find them, the transfer of his interest in 43, Broadwalk, contained a substantial element of bounty on the part of Mr. Kumar even if, as I find not to be the case, Dr. Gupta had agreed in return not to seek further provision out of capital.’

Judges:

Ferns J

Citations:

[1993] 1 WLR 224

Statutes:

Insolvency Act 1986 339, Matrimonial Causes Act 1973 23 24 25

Citing:

Applied – Re Abbot (A Bankrupt), ex parte Trustee Of The Property Of The Bankrupt v Abbot QBD 1983
An ancillary relief order was made in December 1978, following a compromise agreement. It provided for the sale of the former matrimonial home and the payment to the wife from the proceeds of sale of andpound;18,000. The husband was adjudicated . .
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 by:

Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – Haines v Hill and Another CA 5-Dec-2007
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Land, Insolvency

Updated: 01 May 2022; Ref: scu.252317

Asbury v Asbury: 1898

A defendant to a claim for adverse possession made by two joint claimants, and who asserts an acknowledgement of his title must show that the acknowledgement was by both claimants.

Citations:

[1898] 2 Ch 111

Jurisdiction:

England and Wales

Cited by:

Cited – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.250006

Richardson v Younger: 1871

When there are two joint claimants to possessory title, and it is said that they had acknowledged the paper owner’s title, the acknowledgment must be given by or on behalf of both of them.

Citations:

(1871) 6 Ch App 478

Jurisdiction:

England and Wales

Cited by:

Cited – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 May 2022; Ref: scu.250005

Wolverhampton Corporation v Emmons: 1901

The court granted an order for specific performance of a covenant in a building contract. Romer LJ said that the first condition for specific enforcement of a building contract was that ‘the particulars of the work are so far definitely ascertained that the court can sufficiently see what is the exact nature of the work of which it is asked to order the performance’.

Judges:

Romer LJ

Citations:

[1901] 1 QB 515

Cited by:

Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Construction

Updated: 01 May 2022; Ref: scu.247893

Forrest v Overseers of Greenwich: 1858

The court was asked whether a landing stage by a river was part of the land. F. moored a barge in the Thames between high and low water mark : the moorings wera stationary, in the bed of the river; and the barge floated at high water and grounded at low water on the posts in the bed of the Thames by which it was moored, and which were in the parish of G. The barge was connected by a chain with stairs on the land, the soil of which was not the property or in the occupation of A, and which was at that point a common highway to the Thames. Moveable planks were laid from the shore on to the barge, and thence to another barge moored farther out in the Thames, and which always floated. By this means a pier was constructed which was permanently kept there and used for embarking in steam boats and landing from them ; and F, was remunerated by the parties so using ; and he had the sole controul of the pier. Held that he was rateable to the poor rate for G, as occupier of the land in the bed of the river.

Judges:

Lord Campbell

Citations:

[1858] XXI Victoria 890, [1858] EngR 249, (1858) 8 El and Bl 890, (1858) 120 ER 332

Links:

Commonlii

Cited by:

Cited – Chelsea Yacht and Boat Club Ltd v Pope CA 6-Apr-2000
The tenant sought to assert that he occupied a houseboat, the Dinty Moore, under a tenancy of a dwellinghouse under the 1988 Act. The claimant appealed a decision that it was.
Held: A house-boat, even though used as a dwelling, did not have . .
Cited – Corey v Bristow HL 1877
The House considered the liability to be rated to the relief of the poor of the parish within which lay that part of the river where a derrick hulk was moored.
Held: Lord Hatherley said: ‘As Lord Campbell expressed it in one of the cases last . .
Cited – Reeves (Listing Officer) v Northrop CA 17-Apr-2013
The taxpayer had successfully challenged the entry of his houseboat in the rating list at the Valuation Tribunal, but this had been re-instated at first instance. He said that the boat, as a registered seagoing vessel was not a houseboat, and that . .
Lists of cited by and citing cases may be incomplete.

Land, Rating

Updated: 01 May 2022; Ref: scu.245801

Chapman Lowry and Puttick v Chichester District Council: LT 1984

Citations:

(1984) 47 PandCR 674

Cited by:

Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.245987

Seekings v Clarke: 1961

Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’.

Judges:

Lord Parker CJ

Citations:

(1961) 59 LGR 268

Cited by:

Cited – Mear and others v Cambridgeshire County Council ChD 20-Oct-2006
The claimants sought a declaration that a path over neighbouring land was a public vehicular highway as recorded by the respondents, and not a footpath as asserted by the owners, and that gates over the path infringed the public rights. The council . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Applied – Torbay Borough Council v Cross QBD 1995
The highway was 15 metres wide and pedestrianised. Shop owners displayed goods outside their shops, projecting no more than five percent of the total width of the road. The magistrates acquitted them of obstruction.
Held: The appeal was . .
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Land, Crime

Updated: 01 May 2022; Ref: scu.245554

Re Curtain Dream plc: 1990

The company sought to finance its stock. It first sold it to a finance company, then repurchased it on terms including a retention of title clause.
Held: The whole transaction was, in its nature, a charge on the company’s assets, and as such was registerable as a company charge.

Judges:

Knox J

Citations:

[1990] BCLC 925

Cited by:

Cited – Dutton and Another v Davis and Another CA 4-May-2006
The appellant had transferred his property with the intention that it should be subject to a right on his part to repurchase it. He now said the sale was in practice merely a charge.
Held: The appeal failed. The legal nature of the transaction . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Company

Updated: 01 May 2022; Ref: scu.242530

Brocklebank v Thompson: 1903

Parishioners sought to assert as a common right the right to walk across the local manor to the local church.
Held: Rights which have been long enjoyed, and in the absence of evidence that the enjoyment is recent only, are deemed to have been enjoyed since time immemorial. A jury’s finding that such rights have been enjoyed for twenty years is sufficient to raise the presumption. There was no evidence that use had been restricted to tenants of the manor only, and the right was by immemorial custom a churchway or path for the inhabitants of the parish generally.

Judges:

Joyce J

Citations:

[1903] 2 Ch 344, [1903] 72 LJ Ch 626, [1903] 89 LT 209, [1903] 19 TLR 285

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.242338

In re Jeffs’ Transfer (No 2), Rogers v Astley: 1966

The conveyance expressly denied the existence of a building scheme.
Held: Covenants which were made ‘for the benefit of the remainder of the Chorleywood Estate (Loudwater) belonging to the vendor’ were not annexed to each part later sold off.

Citations:

[1966] 1 WLR 841

Cited by:

Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.242387

Bell v Wardell: 1740

The defendant argued in defence to a claim of trespass to land that there was a customary right for the inhabitants of the town to walk and to ride over a close of arable at all seasonable times.
Held: The claim was bad, because the defendant had trespassed at a time when the corn was standing. ‘It was said that by ‘seasonable times’ was meant in good weather, when it did not rain, snow or hail, and when it would be seasonable to ride out for the preservation of health, as the custom is laid to be, But the word ‘seasonable’ will admit here of no such construction; for it is ridiculous to say that ‘unseasonable’ was meant in respect to the person claiming the right. But ‘unseasonable’ must necessarily mean in respect to the owner of the soil; otherwise the custom would be a very strange one, that all the inhabitants of the town of N might ride over plaintiff’s corn and grass at all times of the year which would be to say that the inhabitants of N had a right to take away from plaintiff all the profits of his own land.’ The claim might be granted provided the right was compatible with a reasonable use of the land by the owner.

Judges:

Willes CJ

Citations:

(1740) Willes 202, [1740] 125 ER 1131

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.242333

Jamaica Mutual Life Assurance Society v Hillsborough Limited: PC 1989

The court considered whether a building scheme had been shown to have been established.
Held: A building scheme will not be implied merely from a common vendor and the existence of common covenants.
Lord Jauncey said: ‘It is now well established that there are two prerequisites of a building scheme namely (1) the identification of the land to which the scheme relates, and (2) an acceptance by each purchaser of part of the lands from the common vendor that the benefit of the covenants into which he has entered will enure to the vendor and to others deriving title from him and that he correspondingly will enjoy the benefit of covenants entered into by other purchasers of part of the land. Reciprocity of obligations between purchasers of different plots is essential.’

Judges:

Lord Jauncey

Citations:

[1989] 1 WLR 1101

Cited by:

Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.242393

Lambert v Roberts: QBD 1981

Police officers came into a garden to obtain a breath test. There had been repeated statements by the owner of the premises that the officers, who were on the driveway of his house, were on private property and that he believed the police had no right to administer a breath test in those circumstances.
Held: The officers came onto the garden by virtue of an implied licence, but (Donaldson LJ) ‘. . . it is a licence which is revocable without prior notice. In the present case the justices have found that the defendant’s statement that he was on private property and that the police officers were trespassing was such a notice. I am quite unable to say that this was wrong, although an alternative view of the defendant’s conduct, taken as a whole, is that he was simply disputing the right of the police officers to require a breath test on private property but was not effectively revoking their licence.’

Citations:

[1981] 72 Cr App R 223

Jurisdiction:

England and Wales

Cited by:

Cited – Wayne Fullard, Ryan Roalfe, Regina (on the Application Of) v Woking Magistrates’ Court Admn 16-Nov-2005
The defendants challenged convictions for assaulting police officers acting in the course of their duty. They said the officers were not so acting. The first defendant had been stopped in a vehicle which had left the scene of an accident. At the . .
Lists of cited by and citing cases may be incomplete.

Land, Police

Updated: 01 May 2022; Ref: scu.241689

Billing v Pill: 1954

A shed was erected on land. It was 135 feet long and 150ft wide. It was on a concrete floor and attached by straps. Was it a fixture?
Held: Lord Goddard CJ said: ‘What is a fixture? The commonest fixture is a house which is built into the land, so that in law it is regarded as part of the land. The house and the land are one thing.’
Aldous LJ: ‘In the present case we are concerned with a chalet which rests on concrete pillars and I believe falls to be considered as a unit which is not annexed to the land. It was no more annexed to the land than the greenhouse in Deen v. Andrews or the large shed in Webb v. Frank Bevis Ltd. Prima facie, the chalet is a chattel and not a fixture.’

Judges:

Lord Goddard CJ, Aldous L.J

Citations:

[1954] 1 QB 70

Citing:

Cited – Webb v Frank Bevis Ltd 1940
The tenant’s large shed was fixed to the land.
Held: It was a tenant’s fixture which could be removed by the tenant at the end of his tenancy, even though it was annexed to the land and formed part of it. . .

Cited by:

Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.240405

Re Bromor Properties Limited: LT 1995

On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify.

Judges:

Mr Clarke

Citations:

[1995] 70 P and CR 569

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Citing:

Applied – Re Tarhale Limited LT 1990
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy . .

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238678

Cable v Bryant: 1908

A tenant sought a right to ventilation enjoyed by land let to a tenant. It was argued that there could be no implied easement over adjoining property of a lessor where the adjoining property was already let out. It would be an easement in reversion.
Held: The court avoided a decision on the point by resort to the doctrine of non-derogation from grant, which prevented the lessor and his successors from interfering with the lessee’s use of the dominant land after the lease of the servient land had fallen in.

Judges:

Neville J

Citations:

[1908] 1 Ch 259

Jurisdiction:

England and Wales

Cited by:

Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 01 May 2022; Ref: scu.239386

Re Tarhale Limited: LT 1990

Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy vehicles, apart from those required for a particular development. The objectors said that the numbers of vehicles used in the driveway during the construction period would be as many as ten vehicles per day, and that they would suffer ‘substantial and intolerable nuisance’ from noise, fumes and dust from builder’s traffic using the driveway.
Held: The tribunal accepted the objection. The restrictions secured practical benefits: ‘. . . in preventing the intolerable nuisances, which on the evidence will occur during the construction period’.

Judges:

Victor Wellings QC, President

Citations:

(1990) 60 PandCR 368

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Applied – Re Bromor Properties Limited LT 1995
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify. . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238675

Re Snaith and Dolding’s Application: LT 1995

The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the facts and merits of the particular case, and the Tribunal is unable to bind itself to a particular course of action in the future in a case which is not before it . . It is however legitimate in considering a particular application to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme. The Tribunal has frequently adopted this approach.
Insofar as this application would have the effect if granted of opening a breach in a carefully maintained and outstandingly successful scheme of development, to grant the application would in my view deprive the objectors of a substantial practical benefit, namely the assurance of the integrity of the building scheme. Furthermore I see the force of the argument that erection of this house could materially alter the context in which possible future applications would be considered.’

Judges:

Judge Bernard Marder QC

Citations:

[1995] 71 PandCR 104

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Adopted – McMorris v Claude Brown and others PC 30-Jul-1998
(Jamaica) It could be a proper argument that the first relaxation of a restrictive covenant was merely the thin end of the wedge and it may be sufficient to reject the application though there was no immediate detriment to dominant land. . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Re Hunt’s Application LT 1997
Application was made to relax a restrictive covenant to allow a further house to be built within a garden plot.
Held: The scheme had the primary intention of securing a relatively low density residential development of houses and bungalows. . .
Cited – Lawntown Ltd v Camenzuli and Another CA 10-Oct-2007
Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238673

Gilbert v Spoor: CA 1983

In the case of an application to remove or vary covenants for a property within a building scheme, there is ‘a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are satisfied.’ The court rejected a suggestion that ‘practical benefits’ were confined to financial factors, and held that loss of a landscape view, visible from land in the immediate vicinity of the objectors’ properties, was a sufficient reason to refuse modification. Eveleigh LJ: ‘ . . .the words . . are used quite generally. The phrase ‘any practical benefits of substantial value or advantage to them’ is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather of a restriction which secures any practical benefits. The expression ‘any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit it in the matter contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effect upon a broad basis.’

Judges:

Eveleigh LJ

Citations:

[1983] Ch 27

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238671

Re Lee’s Application: LT 1996

There was a proposal to erect a detached in house in the grounds of a property subject to a ‘one house per plot’ restriction. The tribunal considered the issue of disturbance: ‘I do not think that the prevention of a short term interference with the enjoyment of [the neighbouring house] by the stopping of adjoining building works can be a benefit of substantial value or advantage in relation to the long term enjoyment of the property (see Re Kershaw)’

Judges:

Mr Clarke QC

Citations:

(1996) 72 P and CR 439

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238676

Ozanne and Others v Hertfordshire County Council: HL 1989

Land was acquired for a new highway. The developer had persuaded or agreed with the public authority that it would exercise its statutory powers to acquire land possessed of ransom value.
Held: What the scheme was which underlined a proposed compulsory acquisition was a matter of fact for the tribunal or court. The statutory powers must relate to the use of the acquired land and must be powers enabling the use of the land for a statutory purpose and to be necessary for that purpose. This excludes planning permission or other general consents. They do not include agreements to do works on land owned by a statutory authority.
Lord Mackay of Clashfern: ‘The special suitability or adaptability of the land for any purpose is directed to be left out of account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers. This is expressed in the passive voice but the context shows that the application referred to is by a person using the land and, therefore, the statutory powers in question must be powers enabling a person entitled to use the land to apply it to the purpose in question and since the purpose in question is one to which the land could be applied only in pursuance of the statutory powers the statutory powers must be necessary to enable such person to use the land for that purpose. I do not see how statutory powers not related to the use of the land acquired could form a basis for the application of this part of the rule.
Therefore, I consider that statutory powers conferred upon the Secretary of State to order the stopping up of a highway on land which is not part of the land being acquired could not form the basis of the application of this part of the rule to the land acquired. Since the only statutory powers here relied upon by the council are the statutory powers of the Secretary of State to stop up parts of Thorley Lane, I consider that the council’s argument must fail.’
and ‘ . . in the present case the land acquired could have been used for a highway without the exercise of any statutory power and certainly was not dependent upon the Secretary of State exercising any statutory power to stop up any part of Thorley Lane.’ and
He then drew a distinction between a general statutory consent (eg planning permission), which does not fall within the rule, and a particular statutory power (113C):-
‘This I think goes to emphasise the distinction referred to by counsel for the claimants when he pointed out that, if the present case were covered by the rule, it was very difficult to see why the rule should not also cover a purpose to which a piece of land could be put only after obtaining some particular statutory consent such as planning permission, consent under the Building Acts, or the like. It is clear from the modern statutory provisions governing compensation for the compulsory acquisition of land and the question of what types of development would receive planning consent is highly relevant to the determination of compensation for compulsory acquisition and any construction of the provision founded upon which resulted in any enhancement of the value of a piece of land resulting from its use for a purpose which required planning permission being disregarded would be absurd.’ He approved the conclusion that ‘the first limb of the provisions of rule (3) cannot apply in that special suitability or adaptability of the land can be realised other than by the use of statutory powers.’

Judges:

Lord Mackay

Citations:

[1989] 2 EGLR 18, [1991] 1 WLR 105

Statutes:

Highways Act 1959 214

Jurisdiction:

England and Wales

Cited by:

Cited – J A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 01 May 2022; Ref: scu.238657

Re Kershaw’s Application: LT 1975

Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably from the noise of builder’s vehicles, from the construction of the driveway and by the general disturbance associated with building works’. This would be a considerable disadvantage for up to a year and ‘One of the questions, perhaps the most important question I have to decide, is what weight I should give to this intensive inconvenience and noise generated by builders’ traffic for this very limited period. Clearly for that period the restrictive covenant does secure practical benefits of substantial value or advantage to (the objector). On the other hand, I cannot think that such a literal construction of the section is intended, but rather one should look at the matter in a broader context and regard this as a short term, albeit intensive interference but small and not so substantial in relation to the overall long term enjoyment of the property.’
In principle, protection from short term disturbance arising from construction, although providing a ‘substantial’ benefit during the construction period, had to be looked at in a broader context for the purposes of section 84.

Judges:

Douglas Frank QC

Citations:

(1975) 31 Pand CR 187

Statutes:

Law of Property Act 1924 84

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 01 May 2022; Ref: scu.238677

Stannard v Issa: PC 1987

(Jamaica) The landowners proposed to erect six blocks providing some 40 dwellings, and sought variation of a restrictive covenant to allow this. The provsion as to the variation of restrictive covenants was whether there were: ‘practical benefits sufficient in nature or extent to justify the continued existence of (the restriction)’. The area was a ‘peaceful seaside enclave of a family nature’. The judge had dismissed the application to modify the covenants, but this was reversed by the Court of Appeal, on the grounds that the judge should have taken into account the potentially damaging developments which could have been carried out without breaching the covenants.
Held: The Court of Appeal’s approach was criticised: ‘Given any set of restrictions it is not usually difficult to conjure up colourful or hypothetical examples of things which could be done within the framework of the covenants as they stand and which, if done, would substantially repair or defeat the purpose for which the covenants were imposed, but that is not an exercise which the court is enjoined by the section to undertake. What the court exercising this jurisdiction is enjoined to do is to consider and evaluate the practical benefits served by the restrictions. The purpose of these restrictions is obvious on their face. It was to preserve the privacy of each purchaser’s plot and the quality of the totality of the sub-divisions by restricting housing density, by regulating commercial activity and providing a lower cost limit intended to ensure good quality development. Whether or not the covenants as drawn are sufficiently specific to achieve all these purposes in the face of a really determined attack by somebody intent on disturbing the peace of the neighbourhood is really immaterial. The undisputed evidence was that in fact all those plots which had been built on had in fact been developed by the erection of single storey private dwellings. It was the trial judge’s opinion, after a view, that the land formed a peaceful seaside enclave of a family nature. That was the actuality and, with respect to them, the majority of the Court of Appeal, in positing the nightmare of a complex of medical centres or six-storey castles covering the entirety of the sub-divided lots, were ignoring altogether the practical effects of the restrictions and engaging in unnecessary flights of imagination in order to test whether the original intention of the restrictions was capable of achievements in all circumstances. In doing so they were, in their Lordships judgment, asking themselves the wrong question. The question is not ‘what was the original intention of the restriction and is it still being achieved?’ but ‘does the restriction achieve some practical benefit, and if so, is it a benefit of sufficient weight to justify the continuance of the restrictions without modification?’

Citations:

[1987] AC 175

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 01 May 2022; Ref: scu.238674

Smith v Howden: 20 Apr 1863

A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, and the plot served by the path owned only an easement.

Citations:

(1863) 14 CB (NS) 398, 2 New Rep 30, 143 ER 500, [1863] EngR 422, (1863) 14 CB NS 398, (1863) 143 ER 500

Links:

Commonlii

Citing:

Applied – Holmes v Bellingham 24-Jun-1859
In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining . .

Cited by:

Cited – Paton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.235519

In re Ingleton Charity: 1956

The effect of section 2 of the 1841 Act is that if a reverter occurred but the trustees of the school remain in possession for 12 years, the title by reverter will usually become statute-barred.

Citations:

[1956 ] Ch 585

Statutes:

School Sites Act 1841 2

Cited by:

Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 April 2022; Ref: scu.231635

MEPC Ltd v Christian-Edwards: HL 8 Nov 1979

The testator had granted an option to his son, and in his will directed that if he did not exercise it, he should be granted a lease. A later deed then recited that the will had been varied by an agreement. That deed was referred to indirectly many years later, and the purchaser objected that the unfulfilled contract was a flaw in the title.
Held: The House was asked whether the seller had deduced a title good enough to be accepted.
Lord Russell of Killowen said that a purchaser is entitled to be satisfied that: ‘that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser.’

Judges:

Lord Russell of Killowen, Lord Wilberforce, Viscount Dilhorne, Lord Salmon, Lord keith of Kinkel

Citations:

[1979] 3 All ER 752, [1981] AC 205

Cited by:

Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.229217

Barclays Bank Ltd v Bird: 1954

An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’

Judges:

Harman J

Citations:

[1954] 1 Ch 274

Jurisdiction:

England and Wales

Cited by:

Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Paragon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 30 April 2022; Ref: scu.229646

Price v Bouch: 1986

The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld.
Held: A term that consent would not unreasonably be withheld should be implied when necessary to uphold the purpose (or efficacy) of the contract under which a requirement for consent arose according to the circumstances. The court court not review the reasonableness of the committee’s decision. However: ‘It was conceded that the committee had a duty to inspect and consider any application submitted to them, to reach a decision themselves and not to delegate it to others, and to act honestly and in good faith and not for some improper or ulterior purpose. It was also accepted that, if the committee took into account irrelevant considerations or failed to take into account relevant considerations, or reached a perverse decision such that no reasonable committee could possibly reach, then their decision could be impugned, for it would be ultra vires. This, however, was not enough for the plaintiffs. They insisted that the committee must act reasonably and that they must give reasons for their decision, so that it could, if necessary, be challenged, when the court would adjudicate and decide, in the light of the evidence, whether those reasons were justified.
. . . In my judgment, the mutual covenantors are equally bound by the decision of the committee, whether it be a decision to grant or refuse approval, and they are so bound, provided only that it is given honestly and in good faith and not for some improper purposes. Where the required consent is that of an individual who is free to consult his own interests exclusively, a provision that such consent must not be unreasonably refused is often included in order to prevent consent being withheld arbitrarily, or capriciously, or from improper motives. If that is the only effect of including such a provision, its implication in the present case is unnecessary . . .’

Judges:

Millett J

Citations:

(1986) 53 P and CR 257, [1986] 2 EGLR 179

Jurisdiction:

England and Wales

Cited by:

Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.228506

In re River Steamer Company: 1871

A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title.
Held: The letter was written in the context of a dispute which had advanced to the point of an arbitrator having been appointed, and ‘a letter which is stated to be without prejudice cannot be relied on to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract.’ (Mellish LJ)

Judges:

Mellish LJ

Citations:

(1871) LR 6 Ch App 822

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 April 2022; Ref: scu.228934

Auerbach v Beck: 1985

(New South Wales) An easement does not confer exclusive possession to land. An easement may include a right to extract smells from cooking. As to easements of necessity; Powell J said: ‘it is open to the court to imply into a conveyance or demise the grant of such rights as are absolutely necessary to the enjoyment of the subject matter of the conveyance or demise, or of such rights as are reasonably necessary for the use and enjoyment, in the way contemplated by the parties in the conveyance or demise, of the subject matter of the conveyance or demise.’

Judges:

Powell J

Citations:

(1985) 6 NSWLR 424

Cited by:

Appeal from – Auerbach v Beck 1986
(New South Wales Court of Appeal) Affirmed . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 30 April 2022; Ref: scu.223976

Baxendale v McMurray: 1867

The plaintiff’s land was next to the river Chess. The defendant had for more than twenty years discharged refuse from his paper factory into the Chess upstream of the plaintiff. Latterly a change in the manufacture had led to a different and greater discharge of refuse. The plaintiff sought an order restraining the discharge.
Held: The defendant had acquired an easement. That right was to discharge such refuse as was generally produced by the reasonable and proper course of paper manufacturing using whatever materials were proper for the purpose. The claim was dismissed.
Lord Cairns LJ indicated though a change of materials had been involved in the business of the dominant owner, the servient owner had cause for complaint if he could show ‘a greater amount of pollution and injury arising from the use of this new material’ in order to establish a breach of his rights .

Judges:

Lord Cairns LJ

Citations:

[1867] 2 Ch App 790, [1867] 31 JP 821

Land, Environment

Updated: 30 April 2022; Ref: scu.223974

Ravenocean Ltd v Garner: ChD 19 Jan 2001

The claimant asserted a constructive trust arising from an oral agreement by the defendant to sell his land to the plaintiff. It was conditional on the claimant obtaining planning permission. Pursuant to the agreement, and relying on it, the claimant paid out andpound;3,000.00 in fees.The permission, was granted. The claimant sought a declaration that the land was held on constructive trust, and that it should be vested in him on just and equitable terms, including the payment by him of the alleged agreed purchase price of andpound;40,000.00. There were extensive disputes of fact between the parties. The master had struck out a claim for specific performance the contract being void under s.2 of the 1989 Act, but did not strike out the claimant’s alternative claim to a constructive trust. The defendant appealed.
Held: Lloyd J assumed the facts alleged by the claimant. The appeal was allowed. He struck out the claim for a constructive trust. There could be no serious argument for more than a restitutionary claim for the expenditure. It would not be inequitable to limit the claimant to a restitutionary claim: ‘To the contrary it seems to me that to apply the analogy of Yaxley v Gotts to the present case where the contract is wholly executory, viewing it in terms of a contract if it had been one, in which nothing has been done other than the incurring of a relatively small expenditure by way of the obtaining of planning permission, to go from that to say that this gives the claimant an equity which can only properly be satisfied by treating it as being in the position of a purchaser under a true contract entitled to an order for the transfer of the property on condition that it paid the price, would indeed drive a coach and horses through section 2, and would be a wholly illegitimate extension to facts which do not in any way justify it, of the doctrine of constructive trust and the decision in Yaxley -v- Gotts.’

Judges:

Lloyd J

Citations:

Unreported, 19 January 2001

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Citing:

Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.223730

Sinclair-Hill v Southcott: 1973

There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract.
Held: The principle of the vendor’s trusteeship extended to prohibit withdrawal of a planning application in such circumstances: ‘It was not suggested that a term to keep the planning application in being should be implied. Nor could it be said that a planning application could properly be regarded as part of property passing on sale in the same way and for the same reasons as the roses in the front garden. If it were the principle of trusteeship on the part of the vendor could be applied without any hesitation . . Under modern conditions, where all potential building land is subject to planning consents of various kinds, and where local authorities are likely to have large numbers of such applications before them, it is obvious that a high rather than a low place in the queue was of value to a speculative bidder . . It follows that the vendor in such circumstances is in my judgment under an obligation after the contract has been signed, not to withdraw a planning application which must be assumed to be of value to the purchaser, at any rate without obtaining the purchaser’s consent to such withdrawal.’

Judges:

Graham J

Citations:

(1973) 26 PandCR 490

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.223749

Egmont v Smith: CA 1877

The court discussed the position of a vendor of land between exchange and completion: ‘He is certainly a trustee for the purchaser, a trustee, no doubt, with peculiar duties and liabilities, for it is a fallacy to suppose that every trustee has the same duties and liabilities; but he is a trustee. For that I have the decision of the House of Lords in Shaw v Foster, which only re-stated what had been the well-known law of the Court of Chancery for centuries.’

Judges:

Sir George Jessel MR

Citations:

(1877) 6 Ch D 469

Jurisdiction:

England and Wales

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Nelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.223738

Abdulla v Shah: PC 1959

(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as that of a trustee under the Indian Trusts Act 1882, which in turn was substantially that of a trustee under English law.
Held: A vendor of rent-restricted property which had become vacant between the dates of the contract and of completion was under a duty to consult the purchaser before reletting (at controlled rents) prior to completion of the contract The vendors had no right without consultation with the purchasers to diminish the value of the property as it was after the surrender by reletting.

Judges:

Lord Somervell of Harrow

Citations:

[1959] AC 124

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Commonwealth

Updated: 30 April 2022; Ref: scu.223748

Dimsdale Developments (South East) Ltd v De Haan: 1983

The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the National Conditions of Sale, and referring as it did to the contract of September 30, 1981, which incorporated those conditions, should be treated as having been given and received pursuant to condition 22 of the National Conditions of Sale and so as a notice which made it a term of contract, in respect of which time was of the essence, that the contract should be completed within 28 days of the service of the notice exclusive of the day of service. I appreciate that the notice was dated November 10, 1981, and was expressed to be a notice to complete within 28 days ‘from the date hereof’. But a notice is something which is intended to bring its contents to the attention of the recipient and cannot do that until it reaches him. I am of the opinion that speaking generally, a reference in a notice to ‘the date hereof’ is at least as apt to refer to the date of its service as to the date on which it is and is expressed to be sent, and that the former date (the date of service) is actually to be preferred where, as here,
(a) the notice is given pursuant to a contractual provision referring to that date;
(b) the effect of so regarding it is to save, rather than to destroy, the validity of the notice; and
(c) the recipient treated it as valid, or at least took no exception to it, until well after the 28 days had expired, and certainly had no ground for asserting that the reference to ‘the date hereof’ in any way misled him.’
As to the question of returning a deposit: ‘It is to be observed that a purchaser had no need to pray this sub-section [section 49(2)] in aid when it is not he but the vendor who is the defaulter. The sub-section is needed only to enable a purchaser who is himself in default to recover his deposit.’

Judges:

Mr Gerald Godfrey QC

Citations:

(1983) 47 PandCR 1

Statutes:

Law of Property Act 1925 49(2)

Cited by:

Cited – Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Aero Properties Ltd and Another v Citycrest Properties Ltd and Another ChD 6-Feb-2002
Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .
Approved – Tennaro Ltd v Majorarch 2003
The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 30 April 2022; Ref: scu.223521

Simpsons Motor Sales (London) Ltd v Hendon Corporation (No 1): CA 1962

The use of land purchased under compulsory powers for a different purpose was ultra vires, but did not undermine the original notice to treat. There was no reason not to use a compendious description of the range of purposes for which land was to be acquired.

Citations:

[1963] Ch 57, [1962] 3 WLR 666, [1962] 3 All ER 75, (1962) 126 JP 488, 60 LGR 393, 13 PandCR 372, [1962] RVR 583, (1962) 106 SJ 490

Jurisdiction:

England and Wales

Cited by:

Cited – Capital Investments Ltd v Wednesfield Urban District Council ChD 12-Feb-1964
The council set out to acquire two plots of land for development for housing. After the process had begun, it was decided that some of the land should be uised for educational purposes. A Land Charge had been served but the matter not completed. A . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Appeal from – Simpsons Motor Sales (London) Ltd v Hendon Corporation HL 1964
The plaintiff complained of an attempt by the defendant local authority to enforce in October 1958 a CPO made several years earlier. He obtained at first instance an injunction to restrain the local authority from proceedings on the basis of an . .
See Also – Simpsons Motor Sales (London) Ltd v Hendon Corporation 1965
The paying party under an order for costs objected to the amount of leadig counsel’s fees.
Held: Pennycuick J discussed Rule 28(2) and the Smith -v- Bullins Case: ‘The words ‘or proper for the attainment of justice or for enforcing or . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 30 April 2022; Ref: scu.223476

Tapling v Jones: 1865

The land owner had a building with three stories. Each had a window with established rights of light. He extended the windows in the ground and first floor, and added two new stories. The neighbour built on his own land to an extent sufficient to block the new windows.
Held: The right to an ancient light is a matter of positivi juris, and is not derived from a presumption of lost grant. It arises automatically after enjoyment for 20 years, and is not lost by subsequent temporary interruption. The owner of a building does not exceed the limits of his right by opening new windows overlooking his neighbour’s land, whose remedy is solely to build so as to interrupt any new right without obstructing an existing right.

Citations:

[1865] 11 HLC 290

Cited by:

Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.222583

Pugh v Howells: CA 1984

The court ordered a building to be demolished were the development had been speeded up and completed over a bank holiday weekend in order to present the plaintiff with a fait-accompli, having been warned that the proposed works would infringe a right of light.

Citations:

[1984] 48 PandCR 298

Jurisdiction:

England and Wales

Cited by:

Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.222599

Gayford v Moffatt: 1868

The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords.

Citations:

[1868] 4 Ch App 133

Cited by:

Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 30 April 2022; Ref: scu.222579

Garland v Ralph Pay and Ransom: 1984

Receivers taking possession of a property are not under an obligation to make the property more attractive before marketing it.

Judges:

Nicholls J

Citations:

[1984] 2 EGLR 147

Cited by:

Cited – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 30 April 2022; Ref: scu.221431

Birmingham Citizens Permanent Building Society v Caunt: 1962

The court considered whether there it had jurisdiction to refuse to order possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable.
Held: The court made an extensive review of the authorities. Russell J said: ‘where (as here) the legal mortgagee under an instalment mortgage under which by reason of default the whole money has become payable, is entitled to possession, the Court has no jurisdiction to decline the order or to adjourn the hearing whether on terms of keeping up payments or paying arrears if the mortgagee cannot be persuaded to agree to this course. To this the sole exception is that the application may be adjourned for a short time to afford to the mortgagor the chance of paying off the mortgage in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring. When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth.’

Judges:

Russell J

Citations:

[1962] 1 Ch 883

Jurisdiction:

England and Wales

Cited by:

Cited – North British Housing Association Ltd v Matthews, Same v Others CA 21-Dec-2004
In each case the tenants requested adjournment of the possession proceedings brought against them by the landlord for arrears of rent to allow them time to bring the arrears below the level at which a possession order could be made. In each case it . .
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.

Litigation Practice, Land

Updated: 30 April 2022; Ref: scu.221436

Mander v Falcke: 1891

A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged.

Citations:

[1891] 2 Ch 554

Cited by:

Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Cited – Jarvis Homes Ltd v Marshall and Another CA 6-Jul-2004
An intended new road was going to be the access way for 12 new houses. Part of a restrictive covenant provided that the covenantors and their successors would not ‘use or permit or suffer to be used the land hereby conveyed or any part thereof or . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.220709

Blythe Corporation’s Application: 1962

A covenant required the purchasers to erect and maintain a chain link fence.
Held: The covenant was a positive personal covenant between the original vendor and the original purchaser and was not a restrictive covenant. The Lands Tribunal declined jurisdiction to vary it under the section.

Citations:

(1962) 14 PLCR 56

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Cited – Blumenthal v The Church Commissioners for England CA 13-Dec-2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant.
Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.220272

Gilchester Properties v Gomm: 1948

Gilchester_Gomm1948

In a conveyance of leasehold properties, the vendor’s solicitors replies to a purchaser’s enquiries were qualified ‘as far as the vendor knows’.
Held: This was not a representation beyond the knowledge of the vendor. The relief claimed was inappropriate since it would amount to an award of damages for an innocent misrepresentation.

Citations:

[1948] All ER 493, [1948] 64 TLR 235, [1948] 92 Sol Jo 220

Land

Updated: 30 April 2022; Ref: scu.219177

Neighbour v Barker: CA 1992

Purchasers had set out to buy the property without having a survey, relying upon representations as to its condition, later found to be fraudulent, from the vendor. The condition was discovered only after exchange of contracts. The purchasers’ solicitors were not negligent in advising the purchaser as to the dire consequences of not completing, since there was at that time no way out of the contract known. The replies to preliminary enquiries included incorrect assertions that the property had had the benefit of NHBC cover, but that it had expired, and that there were no defects ‘so far as the vendors are aware, but the purchaserss must in all respects rely upon their own inspection or survey’. The purchasers had strongly advised the purchasers to have a survey before exchange. The purchaser felt obliged to complete and did so. It later transpired that the NHBC had found the house unrepairable and settled the claim. At first instance the vendor had been found liable for fraudulent misrepresentation, but the second defendants, the purchasers’ solicitors were not negligent.
Held: The solicitors were not to be criticised. Had completion been delayed, they might have discovered the facts that would have allowed their client not to have to complete, but there was no reason for them to have known that at the time.
The vendors were responsible since the words ‘as far as the vendor knows but the purchaser must in all respects rely on their own inspection and survey’ included a representation which they knew to be false since they knew of the defect.

Citations:

[1992] 40 EG 140

Statutes:

Misrepresentation Act 1967

Jurisdiction:

England and Wales

Citing:

Cited – County Personnel (Employment Agency) v Pulver (Alan R) and Co CA 1987
The parties were negotiating for an under-lease. The lease provided for rent to increase along with rent reviews under the head lease. The solicitors failed to ascertain the rent under the head lease, to advise his client to have the property . .
Lists of cited by and citing cases may be incomplete.

Land, Professional Negligence

Updated: 30 April 2022; Ref: scu.219183

Record v Bell: ChD 21 Dec 1990

Contracts for the sale of a house were about to be exchanged but office copy entries of the vendor’s title at the Land Registry had not yet been supplied. The solicitors agreed that contracts would be exchanged on the basis of a warranty that office copies, when available, would show that the vendor was the registered proprietor. Office copy entries were supplied before completion was due, and the vendor’s title was established. But, in answer to a summons for a summary order for specific performance, the purchaser argued that the contract did not satisfy the requirements of section 2 of the 1989 Act.
Held: The warranty was binding on the vendor even though not given in writing. It was collateral to the principle contract, and outside section 2. The warranty was intended to induce the purchaser to exchange contracts, but it was not itself a term of the sale, and the existence of the warranty did not lead to the conclusion that the requirements of section 2 of the 1989 Act were not satisfied in respect of the contract of sale.

Judges:

Baker QC HHJ

Citations:

Times 21-Dec-1991, [1991] 1 WLR 853

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – De Lassalle v Guildford CA 1901
The court was asked whether a representation amounts to a warranty or not.
Held: AL Smith MR said: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or . .

Cited by:

Cited – Jones and Another v Forest Fencing Limited CA 21-Nov-2001
The sellers of and disputed an order as to whether electrical equipment at the site hd been included in the contract.
Held: ‘the answer to the question ‘what meaning should be given to the words used in the memorandum’ cannot, I think, be a . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 30 April 2022; Ref: scu.219188

Craddock v Hunt: 1923

When negotiating for the purchase of property the parties agreed orally that an adjoining yard was to be excluded. The written contract as exchanged included the yard.
Held: Recitification was ordered.

Citations:

(1923) Ch 136

Contract, Land

Updated: 30 April 2022; Ref: scu.219173

Driver v Broad: 1893

An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its business’ and one that does not. The concept was inherent in the term ‘floating security’ or ‘floating charge.’

Judges:

Kay LJ

Citations:

[1893] 1 QB 744

Cited by:

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 – Ashborder Bv and others v Green Gas Power Ltd and others ChD 29-Jun-2004
. .
Cited – Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others CA 19-Apr-2011
The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.219434

Dale v Hamilton: 1846

An oral partnership agreement mat be valid despite the partnership owning land.

Citations:

(1846) 5 Hare 369

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company, Land

Updated: 30 April 2022; Ref: scu.219437

Strover v Harrington: 1988

A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer’s solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later repeated by the valuer.
Held: Sir Nicholas Browne-Wilkinson VC said: ‘if it is once shown that a misrepresentation has been made, it is no answer for the representor to say that the representee has been negligent and could have found out the true facts if he had acted otherwise. The representee is under no duty of care to the representor to check on the accuracy of the representation. The representor is bound by his representations, however careless the representee may have been.’ However when documents were received by the purchaser’s solicitor, he was obliged to communicate them to his client, and that therefore there was from that time no concealment. The knowledge of the solicitor was imputed to his client. It was for a purchaser to satisfy himself as to the condition of what he purchased. The cause of the loss was not any misrepresentation, but the solicitor’s failure. In any event the property was worth the price paid.
Browne-Wilkinson VC: ‘In this, as in all other normal conveyancing transactions, after there has been a subject to contract agreement the parties hand the matter over to their solicitors who become the normal channel for communication between vendor and purchaser in all matters relating to that transaction. In so doing, in my judgment the parties impliedly give actual authority to those solicitors to receive on their behalf all relevant information from the other party relating to that transaction. The solicitors are under an obligation to communicate that relevant information to their own clients. At the very least, the solicitors are held out as having ostensible authority to receive such information. Whether there be express or ostensible authority, the purchaser is in my judgment estopped from denying that he received the information relating to the transaction which has been communicated to his solicitors acting in the same transaction. In my judgment, such knowledge should be imputed to the principal.’

Judges:

Sir Nicholas Browne-Wilkinson VC

Citations:

[1989] ANZ Conv R 352, [1988] 1 Ch 396, [1988] 09 EG 61, [1988] 2 WLR 572

Jurisdiction:

England and Wales

Cited by:

Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.

Land, Legal Professions

Updated: 30 April 2022; Ref: scu.219193

Smith v Mansi: CA 1962

Where a land contract was not to be by way of exchange of multiple parts, but by signatures on one document, and in the absence of any other indication, the contract became binding upon the last signature being appended.

Citations:

[1963] 1 WLR 26, [1962] 3 All ER 857

Jurisdiction:

England and Wales

Land, Contract

Updated: 30 April 2022; Ref: scu.219190

Harrison v Battye: 1974

Where it is intended that a contract should come into existence upon exchange of contract document parts executed by the various parties, it was necessary for the parts exchanged to be identical. The effective date when parties are bound is the date of exchange.

Citations:

[1975] 1 WLR 58, [1974] 3 All ER 830

Jurisdiction:

England and Wales

Cited by:

Cited – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 30 April 2022; Ref: scu.219179

Knight v Pursel: 1879

A wall could be a party wall in part and belong in another part to one of the joint owners separately.

Citations:

[1879] 11 ChD 412

Jurisdiction:

England and Wales

Cited by:

Cited – Dean v Walker CA 10-May-1996
The appellant sought to challenge an order granting his neighbour access across his land in order to maintain a gable end wall.
Held: The judge was plainly correct to make the order. The appellant’s fear that this would prejudice any future . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.219078

Orr Ewing v Colquhoun: HL 1877

The House relied upon analogies to compare public rights of navigation over watercourses and rights of way over land, but recognised the differences in language which would be used and the incidents of the rights.

Judges:

Lord Blackburn, Lord Hatherley

Citations:

(1877) 2 App Cas 839

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton CA 1991
The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it.
Held: The 1932 Act did apply, and public rights of way applied, but no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.214611

Marshall v Ulleswater Steam Navigation Co: 1871

A public right of navigation may, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake

Citations:

(1871) LR 7 QB 166

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.214607

Simpson v Attorney General: 1901

The analogy between public rights of navigation and public rights of way over land is not complete.

Judges:

Farwell J

Citations:

[1901] 2 Ch 671

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.214606

Schweder v Worthing Gas Light and Coke Co (No. 2): 1913

Where land is dedicated as a public street, what is dedicated is the soil of the way itself and the subjacent soil to the extent necessary for its maintenance.

Judges:

Eve J

Citations:

[1913] 1 Ch 118

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.214613

Proprietors of the Stourbridge Canal v Wheeley: 1831

The court explained the Act: ‘The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, – that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act.’

Judges:

Lord Tenterden LCJ

Citations:

(1831) 2 B and Ad 792, [1831] EngR 276, (1831) 109 ER 1336

Links:

Commonlii

Statutes:

Grand Junction Canal Act 1793 79

Cited by:

Cited – Swan Hill Developments Limited, Lloyd-Thomas etc v British Waterways Board CA 25-Feb-1997
The issue was whether the rights given under the section could only be exercised by owners of land on either side of the canal.
Held: The Act took rights over land and was to be construed in the case of any ambiguity against its proposers. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.200658

Caledonian Railway Co v Walker’s Trustees: 1882

The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, whether such access be by a public road or by private way, is a proper subject for compensation.’

Judges:

Lord Selborne LC

Citations:

(1882) App Cas 259

Cited by:

Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Clift and Another v Welsh Office CA 23-Jul-1998
Whilst it was settled law that no compensation was payable for temporary disturbance to neighbouring land by building works on land compulsorily purchased, as soon as that disturbance came to produce physical damage, compensation became payable. . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Close v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 30 April 2022; Ref: scu.200682

Morton v Woods: QBD 1867

The owner of a factory, having already conveyed his legal estate by virtue of a first charge, purported to grant a second mortgage to a bank. As additional security, he ‘attorned tenant’ to the bank. He acknowledged a relationship of landlord and tenant between them. This was intended to give the mortgagee the rights of a landlord. When the borrower failed to pay, the bank levied a distress. The owner of the goods sued for damages, claiming that the bank had no right to levy distress because that ancient common law remedy was available only to the holder of a legal estate. A recital to the mortgage made it plain that the bank was a second mortgagee and therefore had no legal estate.
Held: The mortgagor was estopped from denying the bank’s legal title. Kelly CB: ‘it is the creation of the tenancy, or the estoppel, which arises from the creation of the relation of landlord and tenant by agreement between the parties, that makes the actual legal estate unnecessary to support the distress.’

Judges:

Kelly CB

Citations:

(1867) LR 4 QB 292

Cited by:

Cited – Bruton v London and Quadrant Housing Trust HL 24-Jun-1999
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.199981

Crowe v Ballard: 1790

Crowe was the expectant heir to a legacy with a life tenant and in 1777 asked Ballard to sell his expectancy on his behalf. Ballard claimed to have sold to Toft for andpound;350, but had in fact bought the expectancy himself and advanced andpound;310 to Crowe. In 1780 the life tenant was dying and Crowe applied to Ballard to re-purchase the legacy. Ballard revealed he was the purchaser but was only prepared to re-sell the legacy if Crowe made a post-obit bond to pay him (Ballard) andpound;1,800 after the death of Crowe’s father. The bond falsely recited that it was given in consideration of a debt of andpound;900. Crowe’s father died in 1782 and Crowe gave Ballard a new bond for andpound;1,800 with 5% interest. He paid the interest on that bond until 1787 when he offered to pay the money originally due with interest if the bond were released. Ballard refused and brought an action on the bond whereupon Crowe filed a bill for delivery up of the bond on repayment of the money originally advanced. Sir John Scott S-G for Crowe said that the only argument that could be urged was that the 1782 bond and the subsequent payment of interest over a 4 year period were a ‘confirmation’ of the original transaction. Mr Mansfield for Ballard agreed saying:- ‘It is not now a question, what would be the proper justice between the parties, if it had stood upon the original transaction without anything intervening to alter or confirm it.’ His argument was that the 1782 bond was a new contract and not affected by Ballard’s original unconscionable conduct.
Held: Finding for Crowe, the court doubted whether the word ‘confirmation’ was correctly used but held, in any event, that the 1782 bond could not be such a ‘confirmation’. ‘. . . I have attended formerly to the reason of that word ‘confirmation’; and have been at a loss for the principle, upon which the Courts have spoken of such transactions as these, subsequent to the demand arising, as a confirmation. I know, if a gentleman of honour and fortune feels himself bound in honour by the circumstances of a bargain, however disadvantageous, not to rescind it, and, knowing the case, declares, when of full age, not under the terror of distress, that he thinks proper to give a new bond; the circumstance of an honorary engagement, attended with money actually advanced, is sufficient to maintain the possessor of the new bond. But if a man gives a new bond under an idea, that the old one may be enforced against him, at what time is that a confirmation? . . . What I go upon is, that the second bond was not given freely, but upon a consideration, that in his mind carried with it a value, it ought not, and was derived from a fraudulent consideration.’

Judges:

Lord Thurlow LC

Citations:

(1790) 1 Ves Jun 214

Cited by:

Cited – Yorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
Lists of cited by and citing cases may be incomplete.

Land, Undue Influence

Updated: 30 April 2022; Ref: scu.199970

Fearnside v Flint: 1882

The court rejected the contention that the limitation period was 20 years for a case of an action on a collateral bond. The sum secured by a mortgage on land and also secured by a covenant in the deed is one and the same sum ‘so that when the right of suit or action in respect of the land is gone, the right on the covenant ceases also’.

Judges:

Fry J

Citations:

(1882) 22 Ch D 57

Cited by:

Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 April 2022; Ref: scu.199715

Grant (Gordon) and Co v Boos: HL 1926

The mortgagee had entered into possession, and then, with the consent of the court, itself bid at the auction and succeeded in purchasing it. It later resold the property for a price above the auction price. The borrower resisted an action for the balance due under the loan.
Held: The balance above the auction proceeds remained due, and the later profit realised by the lender was not relevant.

Citations:

[1926] AC 781

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.199718

Sutton v Sutton: 1882

A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant (not on a simple contract debt) for the sum due under the covenant. No attempt had been made to enforce the lender’s security rights against the land charged. The defendant successfully pleaded limitation. More than 12 years had passed since any payment had been made under the deed. The court rejected the contention that the period for recovery under an action at law on the personal covenant was 20 years, that being the period still allowed by the 1833 Act for actions on a specialty. Subject to questions of payment and acknowledgement of the debt, the reduced 12 year period in s8 of the 1874 Act embraced both the personal remedy on the covenant against the mortgagor and the proprietary remedy against the land, on which the debt is secured, so that, if the remedy in respect of the land itself was barred, so also was the right of action on the covenant. The specific limitation provisions relating to mortgages take precedence over the general provisions relating to specialties.

Judges:

Sir George Jessel MR and Bowen LJ

Citations:

(1882) 22 Ch D 511

Statutes:

Real Property Limitation Act 1874 8, Civil Procedure Act 1833

Cited by:

Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 30 April 2022; Ref: scu.199714

Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde: HL 1978

No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the law.

Judges:

Lord Wilberforce

Citations:

[1979] AC 508, [1978] 2 All ER 1168, [1978] 3 WLR 378, 142 JP 541, 122 Sol Jo 507

Jurisdiction:

England and Wales

Citing:

Appeal from – Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another CA 1978
An action was brought by the displaced owner of a hotel in Northern Cyprus taken over by the Turkish administration.
Held: The court declined to exercise an original jurisdiction in the northern part of Cyprus.
Lord Denning MR said that . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Cited – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Land

Updated: 30 April 2022; Ref: scu.199518

Suffolk County Council v Mason: HL 1979

The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and published. They provide an elaborate procedure for enabling representations or objections to be made to the surveying authority (with a right of appeal to the minister) as to anything contained in or omitted from the draft map. Such representations and objections can be made not only by persons interested in the land, but also by members of the public, so that a person who alleges that a right of way as shown on the draft map ought to be upgraded from ‘footpath’ to ‘bridleway,’ or from ‘bridleway’ to ‘road used as a public path,’ has an opportunity at this stage of adducing evidence to make good his claim. The next step in the procedure is the preparation by the surveying authority of a provisional map incorporating any modifications to the draft which, as a result of representations, have been accepted by the surveying authority or upheld by the minister on appeal. The procedure for verifying the accuracy of what is eventually to be shown on the definitive map does not stop here; though the remaining step is not likely to bring to light the existence of more extensive rights of way than are shown on the provisional map. Its presence may, however, supply an explanation of why a reasonable allegation that a right of way of a particular kind exists is treated as sufficient justification for entering it on the draft map. The owner, lessee, or occupier of the soil over which any right of way shown on the provisional map passes has the right under section 31 to apply to quarter sessions (now the Crown Court) for declarations inter alia that a right of way shown on the provisional map either does not exist or is there shown as being more extensive than it really is; and, if he does so, the onus of proving the existence of the disputed right lies on the county council. But failing any proceedings in the Crown Court under this section, an entry of a right of way that originally appeared on the draft map on no firmer basis than that the surveying authority was of opinion that an allegation that it existed was a reasonable one is carried through to the definitive map unaltered.’
and ‘The way in which ramblers . . are to be benefited is by providing them with an easy and conclusive way of proving their rights to walk . . on particular routes’.
Lord Diplock also said: ‘The law of highways forms one of the most ancient parts of the common law. At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or ‘cartway’ is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden and (3) with vehicles and cattle. A ‘bridleway’ is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway, i.e., driving cattle, while a footpath is one over which the only public right of passage is on foot.
At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public – a rule of law that is the origin of the brocard ‘once a highway, always a highway.’

Judges:

Lord Diplock

Citations:

[1979] AC 705, [1979] 2 All ER 369

Statutes:

National Parks and Access to the Countryside Act 1949

Jurisdiction:

England and Wales

Cited by:

Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Cited – Barrett v Director of Public Prosecutions Admn 10-Feb-2009
The defendant appealed against his conviction for driving whilst disqualified. He had driven on a roadway within a caravan park. A public footpath (a highway) went through the park. There were gates at the entrance but these were kept open. The . .
Cited – Ernstbrunner v Manchester City Council and Another Admn 16-Dec-2009
The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 30 April 2022; Ref: scu.199309

Jegon v Vivian: 1871

Unauthorised mining of land – measure of damages.
Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. The financial position of the plaintiff should not be different, according to the accident of whether it intercepted the minerals, or discovered their loss only after they had been sold by the defendant.

Citations:

(1871) LR 6 Ch App 742

Jurisdiction:

England and Wales

Cited by:

Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Approved – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Lists of cited by and citing cases may be incomplete.

Damages, Land

Updated: 29 April 2022; Ref: scu.196922

Davy v Leeds Corporation: HL 1965

The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to receive in compensation the value of their land as sites cleared of buildings and available for re-development. The issue was whether this value was to be assessed on the footing that all the other buildings in the clearance area would be cleared away. This would have enhanced the value of the appellants’ land.
Held: The disregards introduced by section 9 of the 1959 Act prevented any such enhancement of value being reflected in the compensation. Viscount Dilhorne, citing Pointe Gourde: ‘By section 9(2) of the Act of 1959 Parliament, it seems to me, has given statutory expression to the principle which Lord MacDermott stated was well settled. Just as it would be wrong if the price to be paid for land compulsorily acquired was to be reduced if compulsory acquisition reduced its value, so, equally, would it be wrong if the price to be paid was increased as a result of what was proposed.’

Judges:

Viscount Dilhorne, Lord Cohen

Citations:

[1965] 1 WLR 445

Statutes:

Town and Country Planning Act 1959 9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Appeal from – Davy v Leeds Corporation CA 1964
Harman LJ described the section as ‘monstrous legislative morass’ and ‘a Slough of Despond’. . .

Cited by:

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 – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 29 April 2022; Ref: scu.196520

Bryant v Lefever: 1879

A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription.

Citations:

(1879) 4 CPD 172

Jurisdiction:

England and Wales

Cited by:

Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 April 2022; Ref: scu.195598

Holloway v Egham: 1908

There will inevitably be a certain amount of user by persons other than the owner or occupiers of property within the estate e.g. officials and tradesmen.

Judges:

Neville J

Citations:

1908 72 JP 433

Jurisdiction:

England and Wales

Land

Updated: 29 April 2022; Ref: scu.194816

University of Essex v Djemal and others: CA 1980

Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just prior to the hearing before the judge the students vacated Level Six but left behind a note threatening ‘further direct action’ against the university unless their demands were met. The university proceeded with its application but the judge refused to make an order for possession other than in relation to Level Six. The words of Order 113, R.S.C. 1965, restricted the court’s jurisdiction to making an order for possession of such part of the premises as was being or had been wrongly occupied. The university’s appeal was allowed and an order was substituted for possession.
Buckley LJ said: ‘I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner’s property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case. In the present case there was, when the matter was before the judge, a threat to take what is described as ‘further direct action’, which presumably meant similar action to the action which had already been taken, action which might be taken in respect of any part of the university property. In those circumstances it would, in my judgment, have been open to the judge to have made an order extending to the whole of the university property, or he might have made an order extending to particular parts, such as the administrative offices, of the university property. In my judgment he was in error in thinking that he was bound, by the terms of R.S.C., Ord. 113, to restrict his order to that particular part of the university property of which the students were then in actual adverse possession.’

Judges:

Buckley LJ

Citations:

[1980] 1 WLR 1301

Statutes:

Rules of the Supreme Court Orde 113

Jurisdiction:

England and Wales

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Cited – Ministry of Agriculture, Fisheries and Food v Heyman and others 1989
The respondent travellers were in wrongful occupation of an area of woodland owned by the appellant. The appellant sought an order for possession not only to that land but also for an area of woodland in its ownership two or three miles away. The . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – 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.

Litigation Practice, Land

Updated: 29 April 2022; Ref: scu.194587

Williams v Burlington Investments: 1977

Citations:

[1977] SJ 121

Jurisdiction:

England and Wales

Cited by:

Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 29 April 2022; Ref: scu.190144

Harris v Goddard: CA 1983

In a divorce petition, the petitioner sought, under section 24 of the 1973 Act, to sever the joint tenancy in the family home. The respondent died in a car crash before the hearing.
Held: The mere inclusion of such a prayer did not itself operate to sever the joint tenancy. The desire to sever must be immediate. A prayer in a petition was an invitation to a court at some future time to sever the interests, and was not immediate. The joint tenancy had not been severed and the petitioner took the entire property.

Judges:

Lawton LJ

Citations:

[1983] 3 All ER 242, [1983] 1 WLR 1203

Statutes:

Matrimonial Causes Act 1973 24

Jurisdiction:

England and Wales

Cited by:

Cited – H M Customs and Excise and Another v MCA and Another; A v A; Re MCA CA 22-Jul-2002
The husband and wife divorced and a property adjustment order applied for. The husband had been convicted and a drugs proceeds order made under the 1994 Act. The order had not been satisfied, and the receiver applied for money from the matrimonial . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 29 April 2022; Ref: scu.189964

Moody v Steggles: 1879

The owners of a public house claimed the right to affix a sign to the defendant’s house, having been so affixed for more than forty years. The houses had been in common ownership, but it was not clear whether the sign had first gone up whilst the properties remained in common ownership.
Held: No assumption could be made that it had been erected whilst in common ownership. The interest claimed was in the nature of a legal easement, and a grant was to be presumed. An injunction was granted to support the right.

Citations:

(1879) 12 Ch D 261, 48 LJ Ch 639, 41 LT 25

Jurisdiction:

England and Wales

Land

Updated: 29 April 2022; Ref: scu.190032

Lockett v Norman-Wright: 1925

As such, a solicitor does not have ostensible authority to conclude a contract for his client: ‘In the present case there was no evidence of any authority being conferred on the solicitors to make such a bargain, and I think that that fact is perhaps an additional reason why we should place the natural construction on the letter of June 11th, and not impute to the solicitors an intention to make a bargain which they had in fact no authority to make.’

Judges:

Tomlin J

Citations:

[1925] Ch 56

Cited by:

Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Legal Professions, Contract

Updated: 29 April 2022; Ref: scu.188875

Bird and Bird v Wakefield Metropolitan Borough Council: 1976

The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a small part of the underlying scheme. Browne LJ: ‘It is true that [the scheme] did not provide for the compulsory acquisition of any land for industrial development. I do not, however, think it necessary for the scheme to provide for the acquisition; it is enough that it ‘underlies’ it.’

Judges:

Browne LJ, Shaw LJ and Megaw LJ

Citations:

(1976) 33 PandCR 478

Citing:

Developed – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .

Cited by:

Cited – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 29 April 2022; Ref: scu.188872

Singh v Singh: 1985

A husband resisted his former wife’s claim under the section against his brother, her brother-in-law. He asserted, with a view to deceiving both his wife and the Court, that his brother, who held the fee of a house, did not hold any share beneficially for the husband but held entirely for himself, the brother. That would have denied the wife any beneficial interest in the house. He fell out with his brother and adjusted his stance in the related proceedings that were heard at the same time to assert instead that the brother held in part beneficially for him, the husband.
Held: The court considered refusing relief to the husband on the ‘clean hands’ principle but had decided not to do so, because (i) that to do so would harm the former wife, who was not only innocent of the husband’s fraud but was its intended victim and who could recover only if the husband succeeded against his brother and (ii) that the husband had made a clean breast of the falsity of his assertions ahead of the hearings.

Judges:

Anthony Lincoln J

Citations:

[1985] Fam LR 97

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Cited by:

Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 29 April 2022; Ref: scu.188283