Category: Land

Lund v Taylor: CA 1975

The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect’s plan prepared for the common vendor or was told that the common vendor was proposing to exact similar (or indeed any) covenants from the purchasers of other plots.
Held: The appeal succeeded. There was no sufficient evidence from which it could be inferred that the common vendor intended to create a scheme of local law.

Citations:

[1975] 31 P and CR 167

Jurisdiction:

England and Wales

Citing:

Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Approved – Baxter v Four Oaks Properties Limited ChD 1965
The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean . .
Cited – Reid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .

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: 25 February 2022; Ref: scu.263763

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 of the 66 houses were subject to similar covenants.
Held: Reciprocity was a pre-requisite of such a scheme, not merely an effect. It had not been established here, and the claim that a building scheme existed failed. However the benefit of the covenants had been annexed to the land. In this case it would be wrong to impose a permanent injunction, but the court awarded a sum of andpound;3,270 by ay of damages being the individual property’s share of the proportion of 35 per cent of the overall profit.

Judges:

Mark Herbert QC

Citations:

[2006] EWHC 1293 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Eagling v Gardner 1970
Introductory words in a covenant in a conveyance of land such as ‘to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . Estate . .’ are words of express annexation, but they are also not . .
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – 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 . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – 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. . .
Cited – Elliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
Cited – Reid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .
Cited – Marten v Flight Refuelling Limited 1962
The court denied the existence of a building scheme.
Held: Where an owner of land, on selling part of it, sees fit to impose a restriction and expresses that restriction as being for the benefit of the land which he retains, the court will . .
Cited – In re Dolphin’s Conveyance ChD 1970
The court considered whether a building scheme had been established so as to allow the mutual enforcability of restrictive covenants. A particular question arose as to the extent of the scheme involved.
Held: A building scheme was established. . .
Cited – Baxter v Four Oaks Properties Limited ChD 1965
The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean . .
Cited – Brunner v Greenslade ChD 1971
Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though . .
Cited – Cryer v Scott Brothers Sunbury Ltd 1986
A covenant had been taken on the sale of building land to require all building plans to be submitted to the transferors for their approval before building work was commenced.
Held: There was an implication that the transferors would not . .
Cited – Emile Elias and Co Limited v Pine Groves Limited PC 1993
The parties disputed whether a building scheme had been established. There was no external evidence of the intention of the original parties.
Held: The building scheme was not established over a piece of land comprising five plots because . .
Cited – 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 . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – O’Brien Homes Limited v Lane 5-Feb-2004
The court at first instance had considered what to award by way of damages for breach of a restrictive covenant and set a sum of pounds 150,000 out of an anticipated profit of pounds 280,000.
Held: The calculation of the gross profit might be . .
Cited – Amec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 25 February 2022; Ref: scu.242352

Jones v Canal and River Trust: CA 7 Mar 2017

The defendant boat owner appealed against an order requiring the removal of his boat from te hwaterway. He had a licence based upon a stated intention of genuine navigation, but had for a period of several months confined the boat with a 5km section. He appealed saying that the respondents had not considered the need to allow for the fact that the boat was his home, with associated human rights.

Judges:

Jackson, McCombe, Sales LJJ

Citations:

[2017] EWCA Civ 135

Links:

Bailii

Statutes:

British Waterways Act 1983

Jurisdiction:

England and Wales

Transport, Land, Human Rights, Housing

Updated: 09 February 2022; Ref: scu.579607

Sporrong and Lonnroth v Sweden: ECHR 23 Sep 1982

Balance of Interests in peaceful enjoyment claim

(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is general and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The Court further observed that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable. The three rules are not distinct in the sense of being unconnected. The second and third are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.
The search for the striking of a fair balance ‘between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ is inherent in the whole of the Convention.
ECHR Judgment (Merits) – Violation of P1-1; Violation of Art. 6-1; No violation of Art. 14+P1-1; Not necessary to examine Art. 17+P1-1, 18+P1-1 and 13; Just satisfaction reserved.

Judges:

Wiarda, Zekia, Cremona, Vilhjalsson

Citations:

7152/75, [1983] 5 EHRR 35, [1982] ECHR 5, 7151/75

Links:

Worldlii

Statutes:

European Convention on Human Rights P1-1

Jurisdiction:

Human Rights

Citing:

See also – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
See also – Sporrong And Lonnroth v Sweden ECHR 18-Dec-1984
(Article 50) . .

Cited by:

Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
See also – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Distinguished – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Depalle v France ECHR 29-Mar-2010
Grand Chamber
The Court summarised the effect of Sporrong: ‘The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Planning

Leading Case

Updated: 07 February 2022; Ref: scu.164907

Meretz Investments Nv and Another v ACP Ltd and others: ChD 14 Nov 2007

The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a general rule of thumb is to divide them equally between the relevant parties. But that is only a general rule and is not to be allowed to produce injustice. Where costs can be shown to be attributable to one party rather than another, the liability falls only on that party. And where the real contest is between one party A and another party B, injustice could arise if that were not recognised in the way in which the costs of B and other parties employing the same solicitor are apportioned. The judge in this case had made a factual determination in favour of an equal apportionment.
The court considered the proper approach to the costs when calling a solicitor to give evidence as a witness of fact. Warren J set out the three tasks of a solicitor who was also a witness as: (a) assistance and general preparation on the case as a solicitor, (b) producing the witness statement, and (c) cost of attendance at court. The costs incurred in relation to (a) and (c) are, in principle allowable. He continued: ‘As to (b), the position is more complex. There are, at least in theory, two components of the work involved in producing the witness statement. This can be illustrated by considering the position had Mr Hawkins not been involved, in his capacity as a practising solicitor, in preparing the witness statement but had, instead, been treated in the same way by the legal team as any other witness of fact. In that case, Mr Hawkins would have needed to spend time and effort (including, possibly, being proofed) in producing for the legal team the material for them to turn into the witness statement. The cost attributable to first component, the work done by Mr Hawkins, would not be allowable (any more than it would be allowable in the case of any other witness of fact); the cost attributable to the second component, the work done by the legal team, would be allowable.’

Judges:

Warren J

Citations:

[2007] EWHC 2635 (Ch)

Links:

Bailii

Statutes:

Law of Property Act 1925 104

Jurisdiction:

England and Wales

Citing:

See Also – 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 – Ellingsen v Det Skandinaviske Compani CA 1919
The court considered an apportionment of the legal costs as between the parties.
Held: On the authorities, each client was only liable to the solicitors for half of the costs of the joint items of defence and the whole of any separate items of . .
Cited – Adams v London Improved Motor Coach Builders Ltd CA 1921
The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
Cited – Dyson Technology Ltd v Strutt ChD 24-Jul-2007
. .
Cited – Russell Young and Co (A Firm) v Brown and others CA 31-Jan-2007
The court was asked to consider the liability of a tortfeasor to a claimant for a share of those costs which have been incurred by the claimant’s solicitor in investigating and settling a large number of claims of a similar nature, and which have . .
Cited – Korner v Korner and Co CA 1951
It was submitted by the receiving parties (being 7 out of 8 defendants) that they should receive an equal portion of the total costs of the defendants by number, that is to say 7/8ths. The taxing master disagreed, permitting each defendant 7/8ths of . .
Cited – Regina v Miller and Glennie; Miller v- Glennie 1983
The question was whether or not the litigants had incurred liability for costs in cases in which they had been supported by their employer.
Held: Where the solicitor is on the record for the client in the litigation, there is a rebuttable . .
See Also – Meretz Investments Nv v ACP Ltd QBD 27-May-2002
Meretz sued ACP for monies alleged to be due under agreements. . .
Cited – Rogers v Merthyr Tydfil County Borough Council CA 31-Jul-2006
The Court considered the validity of after the event legal expenses insurance and conditional fee agreements schemes, and in particular whether an ATE premium was recoverable by a successful claimant. The damages had been agreed in the sum of pounds . .

Cited by:

Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Appeal from – Meretz Investments Nv and Another v ACP Ltd and others CA 11-Dec-2007
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of . .
Lists of cited by and citing cases may be incomplete.

Land, Costs, Legal Professions

Updated: 07 February 2022; Ref: scu.261306

Commercial First Business Ltd v Atkins: ChD 13 Jul 2012

(1) in what circumstances is a mortgagee of commercial investment property entitled to withhold its consent to a letting of that property, where it is a term of the mortgage that ‘the Mortgagor will not let or grant a licence or tenancy in respect of the Property, or any part of it (nor agree to do so) without the prior written consent of the Lender’; and (2) what consequences follow if such a mortgagee withholds its consent in circumstances where it is not entitled to do so. Whilst these questions arise in the specific context of a mortgage of commercial investment property, the answers may have a potentially wider application for mortgagors of ‘buy-to-let’ residential properties.

Judges:

His Honour Judge Hodge QC
Sitting as a Judge of the High Court

Citations:

[2012] EWHC 4388 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 07 February 2022; Ref: scu.520886

McGahon v Crest Nicholson Regeneration Ltd: CA 21 Jul 2010

The claimants contracted to purchase an apartment ‘off-plan’. The contract was conditional on the grant of a head lease. Notice to complete was served by the developers did not disclose that the head lease had not been granted until after the date required but before the purported rescission. The claimants appealed against a decision that they had lost the right to rescind.
Held: The appeal failed. The date for the acquiring of a head lease was not of the essence, and the contract could still beome unconditional on a later grant, as had happened. The existence or otherwise of the head lease was discoverable from HMLR.

Judges:

Longmore LJ, Sullian LJ, Sir Mark Waller

Citations:

[2010] EWCA Civ 842

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Distinguished – Mardorf Peach and Co Ltd v Attica Sea Carriers Corporation of Liberia (The Laconia) 1977
A right of withdrawal had been granted to a shipowner under a time charterparty if the charterer failed to make a punctual monthly payment of hire.
Held: If the monthly hire had not been punctually paid, the right of withdrawal remained even . .
Cited – Miller’s Wharf Partnership v Corinthia Column Ltd 1991
The contract for a lease was conditional on several matters, with a provision that the sellers would use their best endeavours to satisfy the conditions. A notice to rescind was served. The conditions had been satisfied only after the de fixed, but . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 06 February 2022; Ref: scu.420995

Doe Dem North v Harriet Webber: 10 Jun 1837

An assignment of copyhold premises by a common law conveyance of lease and release, without surrender to the lord of the manor, is not sufficient to support an ejectment by the relessee even against the widow of the relessor.

Citations:

[1837] EngR 827, (1837) 3 Bing NC 924, (1837) 132 ER 666

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 06 February 2022; Ref: scu.313944

National Trust v Secretary of State for Environment: Admn 17 Dec 1998

The claimant applied to have quashed the East Sussex County Council (Crowlink Car Park To Flagstaff Point, East Dean and Friston No 37 Definitive Map Modification Order 1997. The Order modified the County Council’s definitive map and statement of public rights by adding a public footpath which runs from the car park at Crowlink to a junction with the South Downs Way at Flagstaff Point at Friston across land owned by the National Trust. It was conceded by the Secretary of State that that his decision could not stand, but the parties disagreed as to the grounds on which it might be quashed.
Held: Kay J considered the grounds to assist the County Council in considering whether a fresh order should be made in an attempt to avoid further litigation.

Judges:

Kay J

Citations:

[1998] EWHC Admin 1142, [1999] JPL 697, [1998] NPC 166, [1999] COD 235

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Welsh Assembly Government Admn 15-Dec-2008
The County Council had made an order under section 53, establishing a footpath over the claimant’s land. The land owner now appealed. The court had previously quashed the inspector’s decision on the basis that he had not allowed for the interruption . .
Lists of cited by and citing cases may be incomplete.

Environment, Land

Updated: 03 February 2022; Ref: scu.139264

National Trust v White: ChD 1987

Warner J discussed the cases of Cooke v Ingram and Pettey v Parsons concerning rights of way: ‘Each was concerned with the resolution, in particular circumstances, of the inevitable conflict between the dominant owner’s right of access to the way and the servient owner’s right to fence his land. No hard and fast rule emerges from those cases, let alone any rule that could be applied mechanically in the circumstances of the present case. The guidance that those cases do afford is, I think, this, that whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would, in that case, constitute an unreasonable demand depends, of course, in the first instance on the proper construction of the grant and then on the factual circumstances.’

Judges:

Warner J

Citations:

[1987] 1 WLR 907

Jurisdiction:

England and Wales

Cited by:

Cited – Lomax and Another v Wood CA 11-Jun-2001
Land owners were granted a right of way over an occupation road to the highway. They had other means of access to the highway, but eventually sought to construct a gateway onto the occupation road. The owners of the occupation road resisted. It was . .
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 February 2022; Ref: scu.254438

Lord Blantyre and Master of Blantyre v Lord Advocate and Clyde Navigation Trustees: SCS 12 Feb 1878

Property – Possession – Right to Foreshore of a Public Navigable River – Where a Barony Title is followed by Possession.

Citations:

[1878] SLR 15 – 382

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 03 February 2022; Ref: scu.577343

C F and M G Roberts v South Gloucestershire District Council: LT 31 Dec 1994

LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to be assumed – compensation assessed on basis of agricultural value at andpound;17,000 – Alternative valuation (Rule 50(4) Lands Tribunal Rules 1996) andpound;86,000 – Land Compensation Act 1961 s.5 rules (2), (3) and (4), ss.6 and 14 -18.

Judges:

P R Francis

Citations:

ACQ/90/93, [2001] EWLands ACQ – 90 – 1993

Links:

Bailii

Statutes:

Land Compensation Act 1961 5, Lands Tribunal Rules 1996 50(4)

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 . .
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Cited – Wards Construction (Medway) Ltd v Barclays Bank Plc and Another CA 1-Jul-1994
Land with an existing use value of andpound;3,000 had been valued by the Lands Tribunal for purchase at andpound;2.15m.
Held: The ransom value decision by the Lands Tribunal was not wrong in law and was upheld. It was necessary to value the . .
Cited – Copeland Borough Council v Secretary of State for the Environment 1976
An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the . .
Cited – Inland Revenue Commissioners v Clay CA 1914
The court considered the market value of a private residence. The evidence was that its value to persons wishing to use it as a private residence was 750 pounds. However, the house adjoined a nurses’ home the trustees of which wanted to extend their . .
Cited – Laing Homes Ltd v Eastleigh Borough Council LT 1978
The tribunal considered the compulsory acquisition of land for the construction of a spine road through a housing development, where rule (3) of the Rules had been considered in the context of whether the land held the key to its completion.
Cited – West Bowers Farm Products v Essex County Council CA 1985
Farmers sought to construct a reservoir for irrigation. To create the reservoir they would have to excavate substantial volumes of sand and gravel which would be sold on. The appellants contended that the extraction of the sand and gravel was an . .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .

Cited by:

Appeal from – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 03 February 2022; Ref: scu.168569

McEvoy and Another v Warwickshire County Council: UTLC 26 Oct 2020

Compensation – Blight Notice – preliminary issue – whether blighted land – detached bungalow said by claimants to be blighted by proposed A5 by-pass – whether identified for the purposes of a relevant public function in a development plan document – Town and Country Planning Act 1990 section 151(4)(a)

Citations:

[2020] UKUT 276 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 03 February 2022; Ref: scu.655168

Braithwaite v London Borough Of Enfield: UTLC 1 May 2020

COMPENSATION – Compulsory Purchase – house acquired by General Vesting Declaration – property requiring work to bring up to Decent Homes Standard – market value – basic loss payment – compensation for costs of travel to effect removal and for consequential loss due to delayed receipt of compensation – compensation determined at pounds 644,646.37

Citations:

[2020] UKUT 137 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 03 February 2022; Ref: scu.655169

Sceneout Ltd v Central Manchester District Council: 1995

The tribunal calculated compensation in a total extinguishment by reference to the value to the owner. In this case a multiplier of just under two was used.

Citations:

[1995] RVR 200, [1995] 34 EG 77

Jurisdiction:

England and Wales

Cited by:

Cited – Halil v London Borough of Lambeth LT 2-Mar-2001
LT COMPENSATION – compulsory acquisition of leasehold shop and premises – total extinguishment of business – disturbance – analysis of accounts – treatment of wife’s earnings – depreciation of capital assets – . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 February 2022; Ref: scu.230995

Henderson v Foxworth Investments Ltd and Another: SCS 1 Mar 2013

(Extra Division Inner House) The liquidator sought to have set aside the sale of a substantial hotel with golf courses on the basis that it was at an undervalue, with the buyer being aware of the seller’s potential insolvency. He appealed against a finding that the buyer had also assumed debts sufficient to give full value.
Held: The Lord Ordinary had erred in law. He had made no finding that the assumption of the debts had occurred with the sale so as to become part of the consideration, and without that finding, he had not been entitled to hold that the alienation of the property had been made for adequate consideration or, given the knowledge of the circumstances, that Foxworth had obtained the standard security in good faith. Moreover, the Lord Ordinary had not given satisfactory reasons for his conclusions and the issue was therefore at large for the appellate court. On the evidence before it, it was now held that the sale had been a gratuitous alienation, and that Foxworth had not obtained its rights under the standard security in good faith or for value. Decree was therefore granted for the reduction of the standard security.
Lady Paton said: ‘The consideration allegedly given in exchange for the granting of the disposition of Letham Grange to NSL required to be enforceable (ie able to be vindicated) at the time when the disposition was granted on 12 February 2001. On the Lord Ordinary’s own findings, however, there was no enforceable obligation binding NSL to repay Liu family loans as at that date. Taken in context, I am quite unable to read the words ‘part of the loan’ in the penultimate line of para 90 of the Lord Ordinary’s opinion as being referable to the precise or calculated figure of andpound;1.85 million but, even if they were so read, I doubt whether, in the absence of any documentation whatsoever, the ‘decision’ in question could properly be regarded as any more than a statement of intent on the part of Mr Liu. . . It was not open to the Lord Ordinary to accept that consideration was given in exchange for the disposition granted in the form of some vague obligation undertaken by NSL to repay Liu family debt.’

Judges:

Lady Paton

Citations:

[2013] ScotCS CSIH – 13, 2013 SLT 445

Links:

Bailii

Statutes:

Insolvency Act 1986 242

Jurisdiction:

Scotland

Citing:

Opinion – Henderson v Foxworth Investments Ltd SCS 12-Apr-2011
Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production . .
Costs at Outer House – Henderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 01 February 2022; Ref: scu.471308

Bennett and Another v Winterburn and Another: UTTC 6 Feb 2015

An easement by prescription could arise so long as the use in question accommodated the dominant tenement, irrespective of whether the servient owner could have sued the dominant owner for trespass. However, notices visible on a car park were sufficient to prevent any parking easement arising in favour of the dominant owner whose customers and licensees habitually ignored the notices. The notices did not however prevent a right of access being acquired for pedestrian access, as the notices were directed solely towards parking.

Citations:

[2015] UKUT 59 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 01 February 2022; Ref: scu.542302

Henderson v Foxworth Investments Ltd: SCS 12 Apr 2011

Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production and reduction of that pretended standard security.
Held: The sale had been made for adequate consideration. The price recorded in the disposition was far below the value of the subjects, but that price had not been the entire consideration for the sale: The buyer had also taken liability for substantial debts. The disposition was not therefore been susceptible to reduction under section 242. Foxworth had therefore obtained its rights under the standard security in good faith, and it was not liable to reduction.
Lord Glennie said: ‘It is not clear to me on the evidence when the documentation purporting to evidence the assumption of the loan by NSL was created, or indeed when the decision was made that the amount of debt assumed would be andpound;1. 85 million rather than some other figure. Mr Liu acted for both LGDC and NSL (albeit under different names) and also took the necessary decisions so far as concerned the loans from members of his family. To that extent, once the decision was made, the documentation could follow later. It was not suggested in argument that the subsequent creation of documents to record the assumption of the loan as part of the consideration for the sale in any way invalidated what had occurred if the decision had in fact been made to assume part of the loan as part of the consideration. I find that that decision had been made.’

Judges:

Lord Glennie

Citations:

[2011] ScotCS CSOH – 66

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Judgment – Henderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
Opinion – Henderson v Foxworth Investments Ltd and Another SCS 1-Mar-2013
(Extra Division Inner House) The liquidator sought to have set aside the sale of a substantial hotel with golf courses on the basis that it was at an undervalue, with the buyer being aware of the seller’s potential insolvency. He appealed against a . .
Outer House Opinion – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 February 2022; Ref: scu.432879

Grice and another v Dudley Corporation: ChD 1958

An authority serving a notice to treat no longer has a statutory power to acquire land in circumstances where the order under which the notice had been served was for the acquisition of land for specific purposes which the authority had abandoned. Accordingly, the notice to treat was no longer effective. As to the effect of section 123: ‘out of the picture and no further period is laid down by statute within which the next step to acquire the property must be taken. In my judgment, however, the authorities . . established the following propositions: first, the authority exercising statutory powers to acquire land must enforce its notice within a reasonable period. If the authority sleeps on its rights, it will be barred absent explanation. If it is explained, the acquiring authority may enforce the notice if it is equitable to do so. However, the oppression on the owner of land in respect of which a notice to treat has been given cannot be wholly disregarded, however sound the reason for not proceeding to enforce it. The acquiring authority may also evince an intention to abandon the rights given to it by the notice to treat, in which case the owner is entitled to treat those rights as abandoned. Thirdly, the court has an inherent jurisdiction to control the exercise of statutory powers if, but only if, the court can see that the powers are being exercised not in accordance with the purpose for which the powers were conferred. The court may to restrain the further exercise of those powers not in accord with the special act. These three propositions are, in point of law, distinct, but, in practice, they tend to merge one into the other, more particularly the first two, for unequivocal acts of abandonment seldom arise.’

Judges:

Upjohn J

Citations:

[1958] Ch 329

Statutes:

Land’s Clauses Consolidation Act 1845 123

Jurisdiction:

England and Wales

Cited by:

Cited – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 February 2022; Ref: scu.179736

Kind v Newcastle-Upon-Tyne Council: Admn 31 Jul 2001

The appellant complained that the local council had failed to maintain a highway. The road was a single track rural highway. The Crown Court allowed for the present-day character of the highway, and the appellant objected. The complainant sought to hold a highway authority responsible for making verges reasonably available for the use of walkers, cyclists and horse-riders by extending the metalled carriageway over them.
Held: The claim failed. The state of the road was a matter of fact for the Crown Court, and the appellate court should not interfere. The highway included the verges, but this did not create any obligation to extend the roadway to allow use to be made of the verges. The question was whether the road as a whole was in a fit state for use by ordinary traffic, allowing for the character of the highway.

Judges:

Scott Baker J

Citations:

Gazette 23-Aug-2001, [2001] EWHC Admin 616

Links:

Bailii

Statutes:

Highways Act 1980 56(4)

Jurisdiction:

England and Wales

Citing:

Cited – Burnside v Emerson CA 1968
A car crashed as a result of running into a pool of storm-water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system, which had become blocked.
Held: The claim succeeded. Diplock . .
Cited – Burnside and Another v Emerson and Others CA 1968
The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of . .

Cited by:

Cited – West Sussex County Council v Russell CA 12-Feb-2010
The council appealed against a finding that it had failed in its duty to keep the highway safe leading to an accident in which the claimant was severely injured. The road was narrow, and a significant drop had developed by the edge of the road. The . .
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 01 February 2022; Ref: scu.140358

Cornerstone Telecommunications Infrastructure Ltd v London and Quadrant Housing Trust: UTLC 14 Oct 2020

Electronic Communications Code – consideration – compensation – roof top site on residential building in inner London – whether paragraph 17 conditions to be applied to upgrading and sharing rights – relationship between consideration and compensation – use of market transactions as comparables

Citations:

[2020] UKUT 282 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Utilities

Updated: 01 February 2022; Ref: scu.655166

Lord Blantyre and Others v The Clyde Navigation Trustees: SCS 3 Mar 1871

Where trustees were appointed by statute for the purpose of improving the navigation of a river, by deepening and widening and artificially confining its channel, and by other operations; and they and their predecessors had prosecuted this work for more than a hundred years under a series of statutes; and their subsisting act empowered them for the purposes of their undertaking ‘to dig or cut the soil, ground or banks of the said river, and soil, sand or gravel in the bed thereof, and to lay the same upon the most convenient banks of the said river,’-a riparian proprietor raised an action of declarator against them, seeking to have it found, inter alia, that they were bound to fill up the foreshore between the banks of their artificial channel and the original river’s banks to the level of his adjacent lands, or at all events above the level of spring tides, by depositing thereon the stuff dredged from the river, or otherwise, in order to give him access at all times to the river, and to obviate a nuisance created by deposit from the tide upon the above mentioned parts of the foreshore, and occasioned as alleged by the operations of the trustees; and likewise brought a suspension and interdict against the trustees to prohibit them taking the soil and mud dredged from the bottom of the channel out to sea, instead of depositing it upon the adjacent banks with a view to making them up to the required level.
Held (1) that in the circumstances the exercise of one power conferred upon the trustees by these statutes did not alter the character of the other, or convert it into an ancillary or dependent obligation: but that having cut and dug away, or otherwise removed soil from the bed of the river, they were not obliged to deposit it on its banks, but had a discretion as to its disposal uncontrolled by the fact that power to dispose of it in a particular way was attached to the power to remove it.
Held (2) that the selection of one particular method of operation, and its practice even through a long course of years, by trustees empowered by statute to execute a work of public importance, even where that method is recognised in the empowering statute, does not tie them down to adhere to that method as the only competent method of procedure, or entitle persons interested to object to a subsequent alteration of plan in the discretion of the trustees; and that in the particular case, though the method suggested by the act had been employed for many years, and was well known to Parliament when passing the present empowering acts, yet the trustees’ discretion was as wide as when they first adopted it.
Held (3) that the obligation imposed by ss 13 of the original Clyde Navigation Act of 1758 upon the trustees, to ‘raise and strengthen,’ where necessary, as well as to ‘maintain and repair’ the banks of the river, was continued down to and by the Act 1840, but was abrogated, so far as the future was concerned, by the Act of 1858; with this exception, that under ss 44 of this last Act the obligation subsisted so far as the repairing of damage occurring to the banks subsequent to 1858, but traceable to operations performed under the previous Acts.
Observed per Lord Chancellor, that though, where parties empowered by statute, as above- mentioned, have kept within the limits of their authority, if injury result, and the statute makes any provision for its redress, redress must be sought in the statutory way; while if the statute do not make any provision for relief, it must remain without remedy; still that injury arising either from a malfeasance contrary to the powers of the Act, or a nonfeasance, according to the obligations and duties imposed by the Act, may be sought to be redressed in an ordinary action, if the statute do not provide for it a special remedy.

Citations:

[1871] SLR 8 – 454

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 February 2022; Ref: scu.575987

Blantyre v Clyde Navigation Trustees: SCS 29 May 1868

A riparian proprietor on the river Clyde was not entitled to an interdict against the Clyde Navigation Trustees, which would in effect compel them to lay the soil dredged by them in performance of their statutory duties, on the banks of the river ex adverso of the proprietor’s lands, at such part as he might approve.

Citations:

[1868] SLR 5 – 552

Links:

Bailii

Statutes:

Clyde Navigation Consolidation Act 1858

Jurisdiction:

Scotland

Land

Updated: 31 January 2022; Ref: scu.575465

Pearce v Connelly and Others: UTLC 9 Feb 2017

UTLC RESTRICTIVE COVENANTS – modification – garden land with planning consent for residential dwelling – restriction preventing construction of more than one house – whether covenant secures practical benefits of substantial value or advantage – held it did not – application under ground (aa) allowed – Law of Property Act 1925 s.84(1)(aa)

Citations:

[2017] UKUT 39 (LC)

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Land

Updated: 31 January 2022; Ref: scu.575359

In re Connolly Brothers Ltd (No. 2): CA 1912

A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds 1,100, with pounds 150 deposit on exchange. The company duly paid the deposit. On completion (at which the lender was present), the lender’s cheque for pounds 1,000 was paid into the company’s bank account and the company paid the balance of the purchase price (amounting to pounds 950) to the vendor in cash. The same solicitor acted for the vendor, purchaser and lender. The solicitor retained the title deeds, on behalf of the lender. A few days later, the company executed a memorandum of deposit (an equitable charge) in the lender’s favour. Warrington J held at first instance that the equitable charge in favour of the lender took priority over the debenture, saying: ‘these debentures and the trust deed, so far as this after-acquired property is concerned, amount to nothing more than a contract by the company to give to the debenture-holders a security upon this particular item of property by its description as appearing in the conveyance, but only on such interest as the company may in fact acquire in that and their other after-acquired property. Now, in my judgment, the company on the facts of this case never acquired as against Mrs. O’Reilly any interest in this property at all, except subject to the obligation of giving to her a charge for the amount of the purchase-money which she so advanced.’
Held: The appeal failed. The court declined to dissect completion of the purchase and the grant of the charge into two notionally separate and successive stages, with the company acquiring, at stage one, a property unincumbered by Mrs O’Reilly’ charge. Since the lender had a contractual right to the security at the time when she advanced the money, she necessarily had priority over the debentures. During argument for the appellant debenture-holders, Buckley LJ identified the question at issue as being ‘whether the company acquired the property unfettered by any charge to the lender.’
Buckley LJ agreed holding that on completion the company did not acquire an unincumbered fee simple in the property. It obtained the property subject to a contractual obligation to give a first charge on it to Mrs. O’Reilly, and the debenture holders could get no more.
Sir Herbert Cozens-Hardy MR said: ‘Did the company as between themselves and Mrs O’Reilly ever become the absolute owners of the [property]? Or was not the bargain that Mrs O’Reilly was to have a first charge, and the company was only to get the property subject thereto? In my opinion we should be shutting our eyes to the real transaction if we were to hold that the unincumbered fee simple in the property was ever in the company so that it became subject to the charge of the debenture-holders.’

Judges:

Buckley LJ, Sir Herbert Cozens-Hardy MR

Citations:

[1912] 2 Ch 25

Jurisdiction:

England and Wales

Cited by:

Distinguished – Church of England Buidling Society v Piskor CA 1954
Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Security Trust Co v The Royal Bank of Canada PC 1-Dec-1975
(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Distinguished – Church of England Building Society v Piskor CA 1954
A purchaser, let into possession before completion, granted weekly tenancies to Captain Hamilton and others. The plaintiff building society loaned the sum of pounds 1,600 to assist the purchaser with completion, the money being paid over on . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 January 2022; Ref: scu.450490

Church of England Building Society v Piskor: CA 1954

A purchaser, let into possession before completion, granted weekly tenancies to Captain Hamilton and others. The plaintiff building society loaned the sum of pounds 1,600 to assist the purchaser with completion, the money being paid over on completion in return for a legal charge.
Held: The tenants had priority over the building society.
Lord Evershed MR observed that, although the transaction might fairly be said to be one in substance, it could not be said to be one and indivisible in the eyes of the law. He said: ‘It is no doubt true to say that in one sense the transaction was one transaction; but it is equally true to say that it consists necessarily of certain defined steps which must take place in a certain defined order, if the result intended is eventually to be achieved. That seems to me not an artificiality, but a necessary result of the law and of the conveyancing practice which was involved.’
Romer LJ expressed the same view: ‘The theory that a purchase, which is completed by payment of money which has been provided in part by a third party, and a mortgage by the purchaser of the property sold to secure the payment of that money to the lender, constitutes only one transaction, if the instruments are executed at more or less the same time, is a conception which has a prima facie appeal, but it does not, on analysis, in my opinion, truly reflect the legal effect of what takes place. The mortgage of the purchased property cannot have any operation in law (whatever rights it may give rise to in equity or by estoppel) unless and until the purchaser is in a position to vest a legal term in the property, as security, in the mortgagee, and he is not and cannot be in a position to do this until he himself has acquired from the vendor the legal estate out of which the mortgage term is capable of being created. From this it follows that the execution and delivery of the conveyance (if the property is freehold) or of the assignment (in the case of a leasehold) by the vendor to the purchaser must of necessity constitute an essential preliminary to the vesting in the mortgagee of a subsidiary interest in the property.’
He added: ‘I find myself unable to treat as one what were, in law, two palpably distinct transactions merely for the purpose of enabling the society to evict persons, who were already in occupation but whose existence or rights the society had never troubled to inquire about at all.’

Citations:

[1954] Ch 553

Jurisdiction:

England and Wales

Citing:

Distinguished – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .

Cited by:

Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 31 January 2022; Ref: scu.655177

Orr v Mitchell and Others (Moir’s Trustees): HL 20 Mar 1893

The Duke of Argyle holding the plenum dominium of the estate of Castle Campbell of the Crown, in 1796 feued Hillfoot, part of the estate, to Drysdale, reserving coal and coalheughs. In 1726 Moir acquired Drysdale’s feu. In 1808 the Duke conveyed the estate remaining in him to Tait, who in 1811 obtained a Crown charter of resignation and confirmation. Tait’s estates were sequestrated in 1828, and in 1837 his trustee, on the narrative that he had exposed for sale ‘the superiority and feuduty of the lands of Hillfoot,’ and that Moir had been preferred to the purchase, disponed to Moir ‘all and whole the toun and lands of Hillfoot . . all as at present possessed’ by Moir. The warrandice clause excepted the feurights or infeftments granted by the disponer’s predecessors; there was an assignation of the Crown charter of 1811 with its unexecuted precept of sasine. Moir was infeft on the precept. In 1860 Tait’s trustee disponed to Orr the lands of Castle Campbell with a description which included the lands of Hillfoot and the ‘coals and coalheughs,’ and in 1890 Orr raised an action against Moir’s trustees to have it declared that he possessed the coal in Hillfoot in virtue of the conveyance of 1860. The defenders relied on the conveyance of 1837.
Held ( rev. the judgment of the Whole Court) that the pursuer was entitled to the declarator sought, on the ground that the deed of 1837 conveyed the superiority of the lands alone, and did not include the coal.

Judges:

Lord Chancellor (Herschell)) and Lords Watson, Ashbourne, Macnaghten, and Field

Citations:

[1893] UKHL 591, 30 SLR 591

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 31 January 2022; Ref: scu.633297

Security Trust Co v The Royal Bank of Canada: PC 1 Dec 1975

(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the agreed proportion of the price. Fisher failed to pay the stipulated sum on the fixed date. Fisher then granted a debenture, creating a fixed charge on its existing property and a floating charge on future property. A receiver was subsequently appointed under the debenture. The contract was eventually completed. In the subsequent litigation, the question arose whether the charge over the property created by the debenture took priority over the vendor’s mortgage. The Judicial Committee of the Privy Council, allowing the vendor’s appeal, held that Fisher’s interest in the land was merely an equity of redemption subject to the vendor’s mortgage, and that the mortgage accordingly took priority over the charge created by the debenture. Lord Cross limited the extent of the law of escrow: ‘On fulfilment of the condition subject to which it was delivered as an escrow, a deed is not taken to relate back to the date of its delivery for all purposes, but only for such purposes as are necessary to give efficacy to the transaction – ut res magis valeat quam pereat (see Butler and Baker’s case (1591) 3 CoRep 25a). Thus, the fact that the grantor has died before the condition of an escrow is fulfilled does not entail the consequence that the disposition fails. If and when the condition is fulfilled the doctrine of relation back will save it, but notwithstanding the relation back for that limited purpose the grantee is not entitled to the rents of the property during the period of suspense or to lease it or to serve notices to quit.’

Judges:

Lord Cross

Citations:

[1976] AC 503, [1975] UKPC 23, [1976] 1 All ER 381, [1976] 2 WLR 437

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .

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 . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 30 January 2022; Ref: scu.252352

EE Ltd and Another v Edelwind Ltd and Another: UTLC 21 Sep 2020

Electronic Communications Code : Code Rights – preliminary issue about the validity of paragraph 31 notices – service – effectiveness of break notice in a lease – assignment of Code agreement in breach of covenant – whether the Code agreement was a lease or a licence – effect of agreement to be bound by Code rights

Citations:

[2020] UKUT 272 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Utilities

Updated: 30 January 2022; Ref: scu.655162

TW Logistics Ltd v Essex County Council and Another: ChD 8 Feb 2017

The court was asked whether an area of land forming part of the Port of Mistley in Essex should remain registered as a town or village green pursuant to the Commons Act 2006, or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the court’s jurisdiction under section 14 of the Commons Registration Act 1965

Judges:

Barling j

Citations:

[2017] EWHC 185 (Ch)

Links:

Bailii

Statutes:

Commons Registration Act 1965 14, Commons Act 2006

Jurisdiction:

England and Wales

Planning, Land

Updated: 29 January 2022; Ref: scu.573913

Meredith v King’s Lynn and West Norfolk Borough Council: UTLC 12 Jan 2017

UTLC COMPENSATION – Compulsory purchase – Grade II Listed house in disrepair – owner’s failure to comply with Repairs Notice or Urgent Works Notice – development prospects – cost of repair and renovation – valuation – comparables – Section 5(2) Land Compensation Act 1961- compensation determined at andpound;125,000

Citations:

[2017] UKUT 2 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961 5(2)

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573873

Vyse v Wyldecrest Parks (Management) Ltd: UTLC 30 Jan 2017

UTLC PARK HOMES – pitch fee review – site licence fee increased by local authority – whether increase should be included in the pitch fee – presumption of change in line with RPI not displaced – paragraphs 18(1)(ba) and 20(A1) Schedule 1 to Mobile Homes Act 1983

Citations:

[2017] UKUT 24 (LC)

Links:

Bailii

Statutes:

Mobile Homes Act 1983

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573875

Millgate Developments Ltd and Another v Smith and Another, Re: Exchange House, Woodlands Park Avenue, Maidenhead: UTLC 21 Nov 2016

UTLC RESTRICTIVE COVENANTS – Modification – land in green belt subject to restriction to be used only for parking vehicles – 13 affordable housing units built prior to application and in the face of objections – adjoining land with benefit of covenant being developed as children’s hospice – whether modification appropriate – practical benefits of substantial value or advantage – public interest – injury – offer of compensation – discretion – s.84(1)(aa) and (c), Law of Property Act 1925 – modification ordered on payment of compensation

Citations:

[2016] UKUT 515 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573878

Rae, Re 12 Park View (Restrictive Covenants : Modification): UTLC 13 Dec 2016

UTLC Prohibition of more than one house on plot – planning permission for second house – whether covenant obsolete – held that it was not – application under grounds (a) and (c) refused – whether covenant secured practical benefits of substantial value or advantage – held that it did not – application under ground (aa) granted, subject to payment of compensation of andpound;5,000 and andpound;2,500 to immediately adjoining objectors – condition attached to modification to prevent removal of screening hedges

Citations:

[2016] UKUT 552 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573883

Munday v The Crown Estate Commissioners, Re: Pinewood Lodge, Oxshott: UTLC 22 Nov 2016

UTLC RESTRICTIVE COVENANT – Costs – application to modify – objector relying solely on privity of contract – original covenantor transferring burdened land to spouse to avoid objection – objection withdrawn – whether objector to pay costs of application – rules 10(3) and 10(6)(c), Tribunal Procedure (Upper Tribunal)(Lands Chamber) Rules 2010 — Lands Chamber Practice Directions para 12.5(2) – application for costs refused

Citations:

[2016] UKUT 503 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573879

Lynch, Re Land At St Catherines Road Ruislip: UTLC 23 Nov 2016

UTLC RESTRICTIVE COVENANTS – modification – land with planning permission for residential dwelling – prohibition restricting construction of more than one house – whether covenant obsolete – held that it was not – application under ground (a) refused – whether covenant secured practical benefits of substantial value or advantage – held it did not – application under ground (aa) allowed – compensation payable of andpound;25,000 and andpound;15,000 – Law of Property Act 1925 s.84(1)(a), (aa).

Citations:

[2016] UKUT 488 (LC)

Links:

Bailii

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Land

Updated: 29 January 2022; Ref: scu.573877

Oldcorn and Another v Southern Water Services Ltd: TCC 23 Jan 2017

The Claimants sought damages against the Defendants on the basis that the flood damage they suffered at the Property was caused by negligence and / or nuisance on the part of the Defendants.

Judges:

McKenna HHJ

Citations:

[2017] EWHC 62 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Utilities, Land

Updated: 28 January 2022; Ref: scu.573406

Cochrane v Mason: SCS 3 Mar 1866

A local road Act having provided that ‘no person shall make or erect any house or other building within 20 feet of the centre of any road ‘.
Held: (per Lord Kinloch) that this provision did not apply to the rebuilding of old houses which had been taken down in order to be rebuilt.

Citations:

[1866] SLR 1 – 200 – 1

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 28 January 2022; Ref: scu.574428

Paddington Building Society v Mendelsohn: 1985

(Bristol County Court) The relevant date for identifying occupation for section 70 was the date of execution of the building society’s charge. On appeal the case was decided on a different point.

Judges:

Judge McCarraher

Citations:

(1985) 50 P and CR 244

Statutes:

Land Registration Act 1925 70(1)(g)

Jurisdiction:

England and Wales

Cited by:

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.

Registered Land

Updated: 28 January 2022; Ref: scu.553544

Midland Bank Plc v Dobson: CA 12 Jul 1985

The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such direct evidence with caution, if he does accept such evidence the necessary common intention is proved.

Citations:

[1986] 1 FLR 171

Jurisdiction:

England and Wales

Cited by:

Cited – Parris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 28 January 2022; Ref: scu.277169

Brown v Raphael: 1958

This was a sale of an absolute reversion in a trust fund. The particulars stated that: ‘Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate’ and the name of the solicitors who prepared the particulars was given. The solicitors made the statement of belief honestly but they had no reasonable grounds for so believing. The solicitors were better equipped with information or the means of information than the purchaser.
Held: A statement that a vendor is not aware of a defect in title carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists. The statement of belief not merely implied that the solicitors held that belief, but also by implication that the solicitors knew facts which justified their opinion; that they had reasonable grounds for their belief.
Lord Evershed MR said: ‘a statement of opinion is always to this extent a statement of fact, that it is an assertion that the vendor does actually hold the opinion which he states.’

Judges:

Lord Evershed MR, Romer LJ, Ormerod LJ

Citations:

[1958] Ch 636, [1958] 2 WLR 647, [1958] 2 All ER 79

Jurisdiction:

England and Wales

Citing:

Applied – Smith v London and House Property Corporation CA 1884
Bowen LJ said: ‘In considering whether there was a misrepresentation, I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that it is often fallaciously assumed that . .

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 28 January 2022; Ref: scu.185663

Lloyds Bank plc v Rosset: CA 13 May 1988

Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of importance in the law of registered conveyancing. Shortly stated, the point is whether, to have the protection afforded to overriding interests in respect of registered land, the wife needs to be in actual occupation of the house when the legal charge is executed as distinct from being in actual occupation by the later date on which the bank’s charge is registered in the land registry.

Purchas LJ, Mustill LJ, Nicholls LJ
[1988] EWCA Civ 11, [1989] Ch 350, [1988] 3 All ER 915
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
Cited – National Provincial Bank Ltd v Hastings Car Mart Ltd ChD 27-Mar-1963
Cross J set out the nature of overriding interests: ‘Overriding interests are, speaking generally, matters which are not usually shown on title deeds or mentioned in abstracts of title and as to which, in consequence, it is not possible to form a . .
Cited – Weldon v Weldon (No 1) 27-Nov-1883
The duty of the Court to issue an attachment for non-obedience of a decree for restitution of conjugal rights is the same since the Divorce Acts as it was before.
It is not a sufficient compliance by a husband with a decree for restitution of . .
Cited – In re Boyle’s Claim ChD 1961
Mr. Boyle sought compensation in respect of a rectification of the register by removal from his title of land belonging to a neighbour. Since Mr. Boyle’s registered title was subject to overriding interests, he would not have been entitled to . .
Cited – National Provincial Bank Ltd v Hastings Car Mart Ltd CA 1964
The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any . .
Cited – National Provincial Bank v Ainsworth HL 13-May-1965
The respondent stayed on in the family home owned by her husband after he had left, and resisted a possession order sought by the chargee. The husband had charged the house as security for his business debts.
Lord Wilberforce described the . .
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Cited – Barnhart v Greenshields PC 5-Dec-1853
Pemberton Leigh said: ‘With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the . .
Cited – Strand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Williams and Glyn’s Bank Ltd v Boland CA 1979
Money was raised on mortgage of registered land and paid to a single trustee holding the land on trust for sale, and it was held that the rights of beneficiaries who were in occupation and of whom no enquiries had been made were not mere minor . .
Cited – Midland Bank Plc v Dobson CA 12-Jul-1985
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .
Cited – Security Trust Co v The Royal Bank of Canada PC 1-Dec-1975
(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the . .
Cited – Church of England Building Society v Piskor CA 1954
A purchaser, let into possession before completion, granted weekly tenancies to Captain Hamilton and others. The plaintiff building society loaned the sum of pounds 1,600 to assist the purchaser with completion, the money being paid over on . .

Cited by:
Appeal from – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Approved – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – 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.

Trusts, Registered Land, Equity

Updated: 27 January 2022; Ref: scu.251494

National Provincial Bank v Ainsworth: HL 13 May 1965

The respondent stayed on in the family home owned by her husband after he had left, and resisted a possession order sought by the chargee. The husband had charged the house as security for his business debts.
Lord Wilberforce described the common law characteristics of property, saying: ‘Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.’

Lord Hodson, Lord Cohen, Lord Guest, Lord Upjohn, Lord Wilberforce
[1965] UKHL 1, [1965] AC 1175, [1965] 3 WLR 1, [1965] 2 All ER 472
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
At First Instance (ChD) – National Provincial Bank Ltd v Hastings Car Mart Ltd ChD 27-Mar-1963
Cross J set out the nature of overriding interests: ‘Overriding interests are, speaking generally, matters which are not usually shown on title deeds or mentioned in abstracts of title and as to which, in consequence, it is not possible to form a . .
Appeal from – National Provincial Bank Ltd v Hastings Car Mart Ltd CA 1964
The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any . .

Cited by:
Cited – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Registered Land

Updated: 27 January 2022; Ref: scu.248559

Barnhart v Greenshields: PC 5 Dec 1853

Pemberton Leigh said: ‘With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v Stibbert (2 Ves. Jun. 437), but also to interests under collateral agreements, as in Daniels v Davison (16 Ves. 249; 17 id. 433) and Allen v Anthony (21 Mer. 282), the principle being the same in both classes of cases – namely, that the possession of the tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact is bound, according to the ordinary rule, either to inquire what that interest is or to give effect to it, whatever it may be.’

Pemberton Leigh
[1853] 99 Moore PC18, [1853] EngR 1060, (1853) 9 Moo PC 18, (1853) 14 ER 204
Commonlii
Canada
Cited by:
Adopted – Green v Rheinberg CA 1911
. .
Cited – Hodgson v Marks CA 12-Mar-1971
The plaintiff had transferred her house to her lodger, expressing it to be for her love and affection for him. The judge at first instance had held that the true intention of the plaintiff had been that she would continue to live there as before and . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land, Landlord and Tenant

Updated: 27 January 2022; Ref: scu.242648

National Provincial Bank Ltd v Hastings Car Mart Ltd: CA 1964

The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any way distracted by the fact that the owner of the rights under section 70(1) (g) is identified as a person in actual occupation. It is the rights of such a person which constitute the overriding interest and must be examined, not his occupation.’

Lord Denning MR, Russell LJ
[1964] Ch 665
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
Appeal from – National Provincial Bank Ltd v Hastings Car Mart Ltd ChD 27-Mar-1963
Cross J set out the nature of overriding interests: ‘Overriding interests are, speaking generally, matters which are not usually shown on title deeds or mentioned in abstracts of title and as to which, in consequence, it is not possible to form a . .

Cited by:
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Appeal from – National Provincial Bank Limited v Ainsworth HL 1965
The significance of the distinction between occupation and rights was that although the deserted wife was in actual occupation of the former matrimonial home, the quality of her rights was not such as to be capable of amounting to an overriding . .
Cited – Webb v Pollmount Ltd ChD 1966
An option to purchase the reversion contained in a seven-year lease was protected under s. 70(1) by virtue of the tenant’s occupation under the lease. ‘It is vital . . . to bear in mind that what we are seeking to ascertain at present is whether . .
Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Appeal from – National Provincial Bank v Ainsworth HL 13-May-1965
The respondent stayed on in the family home owned by her husband after he had left, and resisted a possession order sought by the chargee. The husband had charged the house as security for his business debts.
Lord Wilberforce described the . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land

Updated: 27 January 2022; Ref: scu.187678

Commissioners of Land Tax for City of London v Central London Railway Co: HL 1 Apr 1913

Where land tax has been imposed and redeemed under Statutes 38 Geo. III, c. 5, 38 Geo. III, c. 60, and 42 Geo. III, c. 116, the praesumptio juris that land abutting on a street or highway is bounded by the medium filum viae held to extend to the question whether that part of the land which underlies the road is included in the redemption, and that therefore the respondents, who under statutory powers had acquired the strip under the street, were exempt from payment of land tax thereon.

Earl of Halsbury, Lords Atkinson, Shaw, and Moulton
[1913] UKHL 967, 50 SLR 967
Bailii
England and Wales

Land

Updated: 27 January 2022; Ref: scu.632742

Matchmove Ltd v Dowding and Another: CA 7 Dec 2016

Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.

Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
[2016] EWCA Civ 1233
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(5)
England and Wales

Land, Contract, Equity, Estoppel

Updated: 26 January 2022; Ref: scu.572005

Brown v The Natural Resources Body for Wales: UTLC 17 Nov 2016

UTLC COMPENSATION – Water – house adjoining River Brenig – flood prevention works including increased height flood wall opposite property and requirement to install flood gate – comparable evidence and price graphs of limited assistance – compensation determined at andpound;5,000 – paragraph 5(1) of Schedule 21 to the Water Resources Act 1991

[2016] UKUT 514 (LC)
Bailii
Water Resources Act 1991
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571761

Sampson v Hoddinott: 20 Jan 1857

Every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream, and may begin to exercise that right whenever he will.

[1857] EngR 132, (1857) 1 CB NS 590, (1857) 140 ER 242
Commonlii
England and Wales

Land

Updated: 26 January 2022; Ref: scu.289878

Corporation of Glasgow v Barclay, Curle, and Co Ltd: HL 6 Jul 1923

A firm of boilermakers transported along the streets of a city a number of boilers which, along with the bogies on which they were mounted, weighed from 65 to 82 tons each, with the result that many of the granite setts with which the streets were causewayed were ‘crushed and ground.’ The streets, however, were not made dangerous or inconvenient for public use, although the date when operations of repair would be required was materially hastened, and part of the permanent material of the causeway was so damaged as to necessitate, when the time for relaying the streets arrived, complete renewal. The local authority within whose jurisdiction the streets in question lay brought an action of damages at common law against the firm-there being no statutory enactments dealing with excessive weight or extraordinary traffic applicable to the streets in question-in which it claimed to recover the cost of replacing the setts which had been destroyed. The evidence showed that traffic of the sort complained of had been taken along the streets in question for many years, and that the respondents had conducted it with proper care and caution. Held ( aff. the judgment of the First Division) that as on the facts proved the user complained of did not amount to an abuse of the streets, but disclosed merely exceptionally heavy wear and tear, it was not illegal, and that as the pursuers had failed to show any negligence on the part of the defenders in their use of the streets the defenders were not liable at common law for the damage done.
Observed per Lord Atkinson-‘I think it is ordinary wear and tear, and that therefore the appeal fails, but I do not desire for one moment to give any countenance to the respondents’ contention that they are entitled to transport over the Glasgow streets whatever weights they please irrespective of the results to the streets.’

Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1923] UKHL 617, 60 SLR 617
Bailii
Scotland

Land

Updated: 26 January 2022; Ref: scu.633265

University of Chester, Re: Land at Sandy Lane: UTLC 18 Oct 2016

UTLC RESTRICTIVE COVENANT – Modification – dilapidated university boathouse – planning permission for larger new community rowing facility – prohibition on trade or business – use restricted to gardens or pleasure grounds – height restriction – whether covenants obsolete – whether covenants secure practical benefits of substantial value or advantage – whether restriction contrary to the public interest – application dismissed – Law of Property Act 1925 s.84(1)(a),(aa)

[2016] UKUT 457 (LC)
Bailii
Law of Property Act 1925 84(1)(a) 84(1)(aa)
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571437

Mohammed and Others v Newcastle City Council: UTLC 31 Oct 2016

UTLC COMPENSATION – compulsory purchase – fish and chip shop – expert evidence following interim decision on facts – grossly exaggerated claim – substantial concessions in claimants’ closing submissions – open market value of freehold interest – no compensation for loss of profits in absence of reliable evidence – disturbance and other rule (6) losses – compensation determined at andpound;238,865

[2016] UKUT 415 (LC)
Bailii
England and Wales

Land, Damages

Updated: 26 January 2022; Ref: scu.571434

Davie and Another, Re: 15 Arun Vale: UTLC 18 Oct 2016

UTLC RESTRICTIVE COVENANTS – discharge – modification – proposed erection of low brick wall – covenant prohibiting erection of wall or fence – whether covenants secure practical benefits of substantial value or advantage – whether injury caused to persons entitled to benefit of restrictions – application dismissed – Law of Property Act 1925 s.84(1)(aa), (c)

[2016] UKUT 462 (LC)
Bailii
Law of Property Act 1925 84(1)(aa) 84(1)(aa)(c)
England and Wales

Land

Updated: 26 January 2022; Ref: scu.571432

Barkhuysen v Hamilton: QBD 10 Nov 2016

Claims had been made between neighbours in the course of a long running neighbour dispute. In particular a claim was made of malicious prosecution as regards a complaint made to the police.
The claimant had ‘amply made out the third and fourth elements of this tort: the defendant made a false, entirely unfounded, and malicious accusation. That accusation set in train the actions of the police that followed: the claimant’s arrest and detention, the seizure of his property, the intimate sampling and other steps I have identified above. The defendant procured a criminal investigation of the claimant lasting several months.’
However, there was no prosecution for the purposes of the tort. Warby J explained: ‘All of that shows that there was a false arrest and false imprisonment thereafter, which were maliciously procured by the defendant. But in my judgment that is not enough to bring home the claim for damages for malicious prosecution. I accept Mr Samson’s argument that there was no ‘prosecution’ for the purposes of this tort. Ms Marzec submits that the underlying principle of the law of malicious prosecution is that an abuse of the process of the law that causes another injury is actionable; the key feature in considering whether there has been a ‘prosecution’ is whether the actions taken against the claimant were such as to cause him injury. She refers me to Churchill v Siggers (1854) 3 E and B 929, Mohamed Amin v Banerjee [1947] AC 322 at 331 (PC), Roy v Prior [1971] AC 470, 477-9 (HL) and the recent decision of the Supreme Court in Willers v Joyce [2016] UKSC 43. But in none of those cases was a mere arrest held to be actionable in the tort of malicious prosecution. Nor, in my judgment, does any of them stand as authority for any principle that would make a mere arrest so actionable. It is important not to treat passages in judgments, however high their authority, as tantamount to statutory wording.
The pleaded case for the defendant is that a prosecution begins when a person is charged. Mr Samson submits that this is too generous an approach. He argues that the authorities point to the conclusion that the malicious institution of proceedings before a judicial body is actionable in this tort, but not anything short of that. I agree, and add that the established rationale of the tort appears to be that compensation should be available for injury caused by a malicious abuse of the judicial power of the state. All of the cases cited above can be explained on this basis. See also the analysis of Sir Timothy Lloyd in Crawford v Jenkins [2014] EWCA Civ 1035 [2014] EMLR 25 [48]-[50].’ (emphasis added)

Warby J
[2016] EWHC 2858 (QB)
Bailii
England and Wales
Cited by:
See also – Barkhuysen v Hamilton QBD 23-Dec-2016
. .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 25 January 2022; Ref: scu.571114

Barr v Cochrane: SCS 8 Jun 1878

The purchaser of an estate has no title to insist on the seller fulfilling specific obligations to make repairs which he was bound to execute by his lease to the tenant, the seller having come to an agreement with the tenant by which he was relieved from all such claims in consideration of a sum of money.
The proprietor of an estate bound himself to the tenant in the lease of a farm to put the buildings, and c., on the farm into good condition, the tenants binding themselves to leave them so at the end of the lease. Before doing this, but after the tenants had taken possession, he sold the estate. A claim having been intimated to the purchaser by the tenants, the seller bound himself to the purchaser ‘to execute all repairs, and c., which he was bound to execute by his lease . . and to relieve you as purchaser of all claims at the instance of the tenants.’ The seller thereupon entered into an agreement with the tenants that they should relieve him from all claims competent to them in consideration of a sum of money. Held (aff. Lord Adam, Ordinary diss. Lord Ormidale) that the tenants being the only creditors in the obligation, the purchaser could not insist on the seller doing the work stipulated for.

[1878] SLR 15 – 603
Bailii
Scotland

Land

Updated: 24 January 2022; Ref: scu.577388

Dowley, Regina (on The Application of) v Secretary of State for Communities and Local Government: Admn 20 Oct 2016

Claim for judicial review of a decision on the part of the defendant to authorise the interested party to enter onto land for the purpose of site investigation prior to the construction of a new nuclear power station known as Sizewell C.

Patterson DBE J
[2016] EWHC 2618 (Admin)
Bailii
England and Wales

Land, Utilities

Updated: 24 January 2022; Ref: scu.570260

Nicolson (Arbuthnott’s Curator Bonis) v Arbuthnott: SCS 7 Jun 1878

An entailer, proprietor of the estates of A and B, executed a deed of entail of B, in which he set out that ‘for the more effectually preserving’ the estate of B ‘distinct from the lordship and estate of A, as a permanent property to the second son of my only son J, . . whom failing, by death or otherwise as after mentioned, to his other sons and their heirs-male in their order, subject to the provision after mentioned, ‘ he destined the estate of B to the second son of his only son and the heirs-male of his body, whom failing to each of the other younger sons of the family in their order of seniority, calling each by name, and adjecting in the case of each this condition?’who shall not have succeeded or become next in succession to the lordship of A;’ whom failing ‘to the other heirs-male of the body of the said J who shall not have succeeded or become next in succession to the lordship of A, ‘ . . ‘whom failing to my own nearest heirs-male whomsoever.’ To this last branch of the destination no condition was specially attached, but there followed the usual clauses with reference to the mode of making up titles, and c., in the event of the prohibitive condition coming into operation, and these clauses were applied to the institute and ‘the other heirs and substitutes before named and appointed, ‘ and in another case to him ‘or any of the other heirs of tailzie before specified.’
There was a further provision, applicable to all the heirs of entail, including ‘heirs whomsoever, ‘ with regard to bonds of provision to wives and children, to the effect that ‘if the granter thereof shall succeed to the lordship of A, ‘ they should ‘in that event be absolutely null and void.’
In a competition for special service to the estate of B, between a party who claimed as the eldest son of J’s eldest son, and who was actually in possession of the lordship of A, and that party’s own second son, held (1) that both must claim under the last branch of the above destination as ‘heirs-male whomsoever’ of the entailer, the previous branch having reference to J’s younger sons exclusively; and (2) that upon a construction of the intention of the testator the prohibitive condition did not apply to the last branch of the destination.

[1878] SLR 15 – 596
Bailii
Scotland

Land, Trusts

Updated: 24 January 2022; Ref: scu.577403