Category: Land

James (T/A P and C James Properties) v Welsh Assembly Government: UTLC 5 Sep 2013

UTLC COMPENSATION – compulsory purchase – shop and premises – condition – cost of essential repairs to bring into safe and lettable condition – valuation methodology – comparables – disturbance – compensation determined at andpound;255,000

P R Francis FRICS
[2013] UKUT 422 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517595

Hutchings and Another v Nuneaton and Bedworth Borough Council: UTLC 16 Oct 2013

UTLC COMPENSATION – compulsory purchase – house in state of disrepair – agreed value as refurbished – cost of refurbishment – comparison with other fire damaged or vandalised properties – compensation determined at andpound;30,500

P D McCrea FRICS
[2013] UKUT 506 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517602

The Trustees of The Green Masjid and Madrasah Re Yardley Wood Road: UTLC 6 Aug 2013

RESTRICTIVE COVENANT – modification – proposed mosque and madrasah – whether objector acting as a custodian of the public interest or as a landowner of adjoining and adjacent land – whether substantial practical benefits – traffic, parking, noise – breach – whether discretion should be exercised to refuse application – application granted subject to acceptance of further provisions by applicants – Law of Property Act 1925, ss84(1)(aa) and (c)

[2013] UKUT 355 (LC)
Bailii
Law of Property Act 1925 84(1)(aa) 84(1)(c)
England and Wales

Land

Updated: 25 November 2021; Ref: scu.517589

Buckstone Group Ltd and Others v Oldham Metropolitan Borough Council: UTLC 24 Apr 2013

UTLC COMPENSATION – compulsory purchase – blight notice – dispute over compensation, satellite litigation and costs – purported settlement – preliminary issues – whether settlement agreement binding – whether ‘pre-reference’ costs included – decision: binding settlement included all claims and costs

[2013] UKUT 265 (LC)
Bailii
England and Wales

Land, Damages

Updated: 25 November 2021; Ref: scu.517583

Smart v The London Borough of Lambeth: CA 7 Nov 2013

A local authority granted a licence to a housing association which in turn allowed a housing cooperative to provide accommodation to former squatters on a licence which was initially for 5 years but was extended. A claim was made for adverse possession.

Longmore, Underhill, Floyd LJJ
2013] 46 EG 108, [2014] HLR 7, [2013] EWCA Civ 1375
Bailii
England and Wales
Cited by:
Cited – ZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 25 November 2021; Ref: scu.517466

Mace Ltd and Others v Persons Unknown: QBD 26 Mar 2021

Application by the first claimant construction company and the second and third claimant landowners for quia timet injunctive relief against persons unknown seeking to prevent an activity known as urban exploring from taking place at a construction site

The Honourable Mrs Justice Stacey
[2021] EWHC 726 (QB)
Bailii, Judiciary
England and Wales

Land

Updated: 25 November 2021; Ref: scu.660813

In re De Falbe: CA 1901

The court referred to the originally unbending rule that everything affixed to the freehold was held to go with the freehold: ‘But in modern times there have come to be important exceptions to this rule, one being in favour of trade fixtures and entitling a person who has put up what are now called ‘fixtures’ (which means removable fixed things) for the purposes of trade to remove them.’ and ‘But the question is, whether they were not made ‘fixtures,’ meaning thereby objects fixed to the wall which might be removed at the will of the person who had fixed them.’ The exception included objects which had been affixed to the freehold by way of ornament.
Vaughan Williams LJ said that there was not to be an inquiry into the motive of the person who annexed the articles, ‘but a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case.’

Rigby LJ, Vaughan Williams LJ
[1901] 1 Ch 523
England and Wales
Cited by:
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2021; Ref: scu.240416

Young v Dalgety plc: CA 1987

A decision had been made at first instance that fitted carpets were fixtures rather than fittings.
Held: The deision was not disturbed.

[1987] 1 EGLR 116
England and Wales
Cited by:
Not followed – Botham and others v TSB Bank Plc CA 30-Jul-1996
A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2021; Ref: scu.241281

Charles Mercer, Second Son of Sir Lawrence Mercer v His Majesty’s Advocate: HL 14 Dec 1753

HL Entail. – Forfeiture.-
Held that the appellant was not entitled to claim his brother’s forfeited estate, he not being an heir-substitute, but an heir-male, of the marriage under the investitures. And that the deed he founded on not containing prohibitory, irritant, and resolutive clauses, nor recorded, could not support his claim.

[1753] UKHL 1 – Paton – 538, (1753) 1 Paton 538
Bailii
Scotland

Land

Updated: 22 November 2021; Ref: scu.558215

The Lord Advocate v John Gordon, Esq Et E Contra: HL 21 Mar 1751

Tailzie. – Forfeiture. – Act 7 Annae, c. 21.-
An entail prohibiting, under strict irritant and resolutive clauses, ‘any deed civil or criminal, or even treasonable, whereby the estate may be in any way evicted, forfeited,’ and co.; and it being declared that any such deed ‘should only irritate the right of the committer thereof, but should in no ways affect the right of the next heir, albeit descending of the contravener’s body,-Found, that by the attainder of the heir in possession, the estate was forfeited to the crown, not only during his own life, but so long as there should survive any issue of his body who would have been entitled to succeed under the entail, had there been no attainder; and further, that whatever interest might eventually arise to the attainted person under the substitution to ‘the heirs and assignees’ of the entailer, was also forfeited to the crown.

[1751] UKHL 1 – Paton – 508
Bailii
Scotland

Land

Updated: 22 November 2021; Ref: scu.558204

Armbrister and Another v Lightbourn and Another: PC 11 Dec 2012

(Bahamas)

Lord Walker, Lord Clarke, Lord Sumption, Lord Carnwath, Sir Stephen Sedley
[2012] UKPC 40
Bailii
England and Wales
Citing:
Cited – Eastwood v Ashton HL 1915
Toi Identify Land, Court to Find True Meaning
A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2021; Ref: scu.466975

Steedman v William R Drinkle and Another: PC 21 Dec 1915

(Saskatchewan) Land in Canada was purchased under an agreement, where the price was to be paid by one initial payment and annual instalments. If the purchaser was to default on any payment, the vendor was free to cancel the agreement and to retain, as liquidated damages, the payments already made. It was also provided that time was to be considered as of the essence of the contract. The first deferred payment was not made on the due date. The vendor gave notice cancelling the agreement. Three weeks after the due date the purchaser tendered the amount due, which was refused. He thereupon brought an action claiming specific performance and relief from forfeiture of the amount already paid.
Held: The Board upheld the decision of the Canadian Court, that the stipulation as to the retention of the sums already paid was a penalty. But the Board declined to grant specific performance.
Viscount Haldane said:
‘Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance where justice requires it, even though literal terms as to stipulation as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of the bargain’.
And ‘As to the relief from forfeiture, their Lordships think that the Supreme Court was right in holding, for the reasons assigned in the former decision of this Board, that the stipulation in question was one for a penalty, against which relief should be given on proper terms. But as regards specific performance they are of opinion that the Supreme Court was wrong in reversing the judgment of Newlands J. Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties, having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach.’

Viscount Haldane
[1915] UKPC 71, [1916] AC 275
Bailii
Canada

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

Duffield v Elwes: 12 Jun 1823

Land subject to mortgage – possible gift donatio mortis causa?

[1823] EngR 598, (1823) 1 Sim and St 239, (1823) 57 ER 96
Commonlii
England and Wales
Cited by:
See Also – Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .
See Also – Duffield v Elwes 1-Jun-1826
. .
See Also – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See Also – Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 22 November 2021; Ref: scu.328638

Trail Riders Fellowship and Others v Powys County Council: Admn 17 Oct 2013

The applicants challenged decisions of the Council to make a traffic regulation order over each of two byways in the county. The Council was both the traffic and highway authority for the county. These orders had the effect of prohibiting the use of the byways by motor vehicles, motor cycles and horse drawn vehicles.

Cranston J
[2013] EWHC 3144 (Admin)
Bailii

Land, Local Government

Updated: 21 November 2021; Ref: scu.516545

West Sussex County Council v Pierce (A Child): CA 16 Oct 2013

‘The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises’

Sharp McFarlane LJJ, Lord Dyson MR
[2013] EWCA Civ 1230, [2014] PIQR 101
Bailii
Occupier’s Liability Act 1957 1 2(2)
England and Wales
Cited by:
Cited – G4S Care and Justice Services (UK) Ltd v Manley QBD 30-Sep-2016
The appellant company managed a prison They now appealed against an order finding them liable to the claimant prisoner for personal injury under the 1957 Act. The claimant had been returned to the prison after a hip operation. The lights went out. . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Land

Updated: 21 November 2021; Ref: scu.516540

Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Others: CA 8 Oct 2013

Appeal against dismissal of claim for quashing of compulsory purchase order.

Goldring, Elias LJJ, Sir David Keene
[2013] EWCA Civ 1178
Bailii
Acquisition of Land Act 1981
England and Wales
Citing:
Appeal from – Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another Admn 2-May-2013
Challenges to compulsory purchase orders.
Held: The Orders stand . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 November 2021; Ref: scu.516320

Commission for New Towns and Another v JJ Gallagher Ltd: ChD 16 Dec 2002

Where a conveyance did not expressly include an adjoining road, there was no statutory presumption which would lead to its inclusion.
Held: The section referred to incorporeal rights, easements and similar, and not to land itself. The Act did not operate so as to include the roadway. The Berridge case referred to cases where the roadway fell to be divided by presumption. Here the entire width was owned, but the presumption would operate as to the entire roadway.
Neuberger J said: ‘So far as principle is concerned, the highway presumption is that, in the absence of a good reason to the contrary, where a vendor conveys land adjoining the highway and (as is usual) he therefore owns the land of the adjoining highway ad medium filum, he should be presumed to have conveyed away that land, which he owns under the highway, together with the land the subject of the express conveyance. The rule is essentially one of convenience, both in public terms and bearing in mind the interests of the parties. It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice (unless, for instance, the highway is diverted), vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the highway. It is in the interest of the parties to a conveyance that the purchaser takes the adjoining highway land, essentially for the same reason. On that basis, if the adjoining owner happens to own more than half the width of the adjoining road, even all the adjoining road, it would seem logical that the presumption should lead to his being deemed to convey away the whole of his interest in the adjoining road. To put the point more simply, if the rule is that, in the absence of good reason, a person should not retain the half of a highway adjoining land which he sells, it seems almost a fortiori that he should not retain the other half of the adjoining highway, if he happens to own that half as well. Further, there is no inherent reason why the soil of the whole of the highway should not be deemed to be conveyed away: consider a case where the vendor owns, and is conveying land on each side of the highway.’

Neuberger J
[2002] EWHC 2668 (Ch), [2003] 2 P and CR 24
Bailii
Law of Property Act 1925 62(1) 62(4)
England and Wales
Citing:
Cited – Berridge v Ward 1861
The court set out the presumption ad medium filum as follows: ‘Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law, is that the soil of the highway usque ad medium filum passes by the conveyance, even . .

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

Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 November 2021; Ref: scu.178611

Beesly v Hallwood Estates Ltd: 1960

A lease contained an option to renew. Both the lease and the reversion were assigned for value. The assignee of the lease exercised the option and a new lease and counterpart were engrossed. The tenant executed the counterpart. The assignee of the reversion, a company, sealed the lease, but then sought to avoid granting the lease.
Held: Buckley J said that where a deed is intended to be executed in duplicate to give effect to a transaction by which each of the two parties undertakes obligations to the other, prima facie a party executing the lease does so in escrow conditionally on the other party executing his part of the lease. J Buckley said that he was bound to treat an instrument complying with section 74(1) as ‘having been not only sealed but also delivered.’ When a party has delivered a document in escrow, he must await the event to see whether or not the condition is fulfilled.

Buckley J
[1960] 1 WLR 549, [1960] 2 All ER 314
Law of Property Act 1925 74(1)
England and Wales
Cited by:
Not followed – Bolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2021; Ref: scu.188669

Roger Michael and others v Douglas Henry Miller and Another: ChD 22 Mar 2004

Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In exercising his power of sale a mortgagee is under a general duty to take reasonable care to obtain the best price reasonably obtainable at the time and ‘the best price reasonably obtainable’ is synonymous with ‘a proper price’ . ‘What is proper advertisement will depend on the circumstances of the case.’ In this case the method of advertisement was the best available in difficult circumstances.The issue of valuing the lavender should be resolved by mediation. Appeal dismissed.

Lord Justice Auld Lord Justice Parker Lord Justice Scott Baker
[2004] EWCA Civ 282, Times 30-Mar-2004
Bailii
England and Wales
Citing:
Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Skipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
Cited – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Predeth v Castle Phillips Finance Co Ltd 1986
A mortgagee who sold by private treaty at a discount in order to achieve a quick sale, instead of offering the property at market value, was held to have breached his duty. . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 November 2021; Ref: scu.194821

The Lord Advocate v Wemyss: HL 31 Jul 1899

Superior and Vassal – Barony Title – Grant of Minerals infra fluxum maris.
Prescription – Superior and Vassal – Estates Held by Different Titles – Disjunction of Barony by Division of Superiority.
Personal Bar – Homologation – Minor – Compromise by Trustees for Minor.

Lord Watson (in the Chair), and Lords Morris and Shand
[1899] UKHL 977, 36 SLR 977
Bailii
England and Wales

Land

Updated: 19 November 2021; Ref: scu.631836

JS Bloor (Wilmslow) Ltd v Homes and Communities Agency: UTLC 1 Jul 2013

UTLC COMPENSATION – compulsory purchase – land in agricultural use acquired as part of major 420 acre strategic business park development – planning assumptions under ss 14-17 of the Land Compensation Act 1961 – whether permission to be assumed on basis that land ‘allocated’ in development plan – whether planning permission to be assumed under ‘no-scheme’ rule – cancellation assumption – statutory disregards – hope value – highways and access – valuation – compensation determined at pounds 746,000

Judge Mole QC and P R Francis FRICS
[2013] UKUT 231 (LC)
Bailii
Land Compensation Act 1961 14 15 16 17
England and Wales

Land

Updated: 19 November 2021; Ref: scu.514723

Tate and Another Re: Dunston West Farm: UTLC 25 Jun 2013

UTLC RESTRICTIVE COVENANT – discharge or modification – redundant farm buildings – covenant not to use other than for agricultural use or as a riding school and livery stable – application to discharge or modify to permit erection of detached dwelling house and conversion of existing buildings to provide three dwelling houses – objection by owner of neighbouring agricultural land within Green Belt but with residential development potential on part – application granted – Law of Property Act 1925, s84(1)(aa)and (c)

N J Rose FRICS
[2013] UKUT 289 (LC)
Bailii
Law of Property Act 1925 84(1)(aa)
England and Wales

Land

Updated: 19 November 2021; Ref: scu.514716

McLennan, Regina (on The Application of) v Medway Council and Another: Admn 10 Jul 2019

Whether interference with solar panels material planning consideration. Application by the claimant for judicial review of a planning permission granted by Medway Council for a rear extension to a building. Some of the claimant’s principal arguments related to the severe impact the extension would have on light received by his solar panels.
Held: The mitigation of climate change is a legitimate planning consideration. The categorisation of the solar panels as a purely private interest which should not be considered in the planning process was flawed. Therefore, Medway Council’s failure to take account of the impact of the proposed development on the solar panels was irrational and one which no reasonable authority could have taken. As a result, K’s planning permission was quashed.

Lane J
[2019] EWHC 1738 (Admin), [2019] WLR(D) 393
Bailii, WLRD
England and Wales

Planning, Environment, Land

Updated: 19 November 2021; Ref: scu.639701

Price and Another v Nunn: CA 31 Jul 2013

[2013] EWCA Civ 1002
Bailii
England and Wales
Citing:
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 November 2021; Ref: scu.514246

Vernon Knight Associates v Cornwall Council: CA 30 Jul 2013

Appeal by Cornwall County Council against a decision that it is liable for damage caused by floodwater escaping from one of the roads in the county.

Lord Dyson MR, Jackson LJ, Sir Stanley Burnton
[2013] EWCA Civ 950, [2013] WLR(D) 329
Bailii, WLRD
Highways Act 1980 41(1) 58(1)
England and Wales

Land, Torts – Other

Updated: 18 November 2021; Ref: scu.514253

Hall v Beckenham Corporation: 1949

A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that was being committed in the park. Finnemore J discussed the purpose of a public walks or pleasure grounds under the 1875 Act, saying: ‘So far as a local authority are concerned, if land is bought under s. 164 of the Act of 1875 for that purpose it is dedicated to the use of the public for the purpose of a park.’

Finnemore J rejected the plaintiff’s submission that even if it was not the occupier, the authority was liable because it had the management and control of the park: ‘So long as a member of the public behaves himself in the ordinary way, committing no criminal offence and observing the by-laws, the corporation cannot stop his doing what he likes in this recreation ground . . I think that the corporation are the trustees and guardians of the park, and that they are bound to admit to it any citizen who wishes to enter it within the times when it is open. I do not think that they can interfere with any person in the park unless he breaks the general law or one of their by-laws. They cannot put themselves in the position of judges of whether a person may be causing a nuisance to someone outside the park. Their proper attitude to such a complaint is to say that the complainer must take action against the person who is said to be committing the nuisance.’

Finnemore J
[1949 ] 1 KB 716
Public Health Act 1875
England and Wales
Cited by:
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Land, Local Government

Updated: 17 November 2021; Ref: scu.187797

Wright v Macadam: KBD 1949

The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was not capable of existing as an easement: ‘A further exception has been recognized in cases in which there could in the circumstances of the case have been no expectation that the enjoyment of the right could be other than temporary.’ The court summarised the Birmingham case: ‘Somebody took a lease of one of the houses at a time when an adjoining plot only had built upon it old buildings of less height than those contemplated by the scheme; but it was well known to everybody that the intention was, and the building scheme demanded, that this plot should be built upon to a greater height.’ He then quoted Cotton LJ and said ‘The learned Lord Justice, I think, meant no more than this, that it was knowledge common to both parties that the existing low building was going to be replaced by a higher one and, that being so, the fortuitous access of extra light to the lessee’s building while the scheme was being carried to completion could not be regarded as an enjoyment of light which would pass to the lessee a right to have it continued in the same degree.’
The court asked whether the right to use a coal shed could exist as an easement.

Jenkins LJ
[1949] 2 KB 727
Law of Property Act 1925 62
England and Wales
Citing:
Explained – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .

Cited by:
Approved – Hair v Gillman 2000
. .
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Cited – Montrose Court Holdings Ltd and Another v Shamash and others CA 21-Feb-2006
Tenants challenging power of freeholders to impose parking regulations on occupiers of development. The landlord appealed.
Held: ‘the regulations in the present case – which limited the right to park to the parking of one vehicle at a time – . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 November 2021; Ref: scu.185829

Trustees of The Coventry School Foundation v Whitehouse and Others: CA 18 Jul 2013

The appeal raised two points as to restrictive covenants: (a) Statutory annexation – whether the covenant was unenforceable, because the land intended to be benefited by the covenant could be easily or fully ascertained as to situation or extent for the purposes of s.78(1) of the Law of Property Act 1925; and (b) Breach – whether the operation of a school on the burdened land, as proposed by the appellant Foundation and opposed by the representative respondent residents living nearby, would be a source of traffic nuisance and annoyance in breach of covenant.

Mummery, McCombe, Beatson LJJ
[2013] EWCA Civ 885
Bailii
Law of Property Act 1925 78(1)
England and Wales

Land

Updated: 17 November 2021; Ref: scu.513395

Hill v Booth: CA 1930

Despite its entanglement with a right of entry intended to procure its payment, a separate personal obligation to pay instalments of the sum agreed as the premium for a lease remained merely a personal obligation and that a call for the payment by instalments was not a claim or demand in, to, or on the property conveyed within Section 63.

Scrutton LJ, Greer LJ
[1930] 1 KB 381
Law of Property Act 1925 63
England and Wales
Cited by:
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 November 2021; Ref: scu.263191

Public Trustee v Duchy of Lancaster: CA 1927

The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express words would be necessary to pass the rentcharge. The intention of the 1836 Act was to keep the tithe rentcharge hereditament separate from the land out of which it issued.
Bankes LJ referred to Chapman v Gatcombe and said: ‘ general words such as those used in that case, ‘together with all the estate, right, title, interest . . of him W. Gatcombe therein or thereto or to any part or parcel thereof’, are insufficient to pass tithe rentcharge. And as the object of Section 63 of the Conveyancing Act 1881 was merely to do away with a necessity of using those general words and to treat every conveyance as if it contained them, that section does not carry the matter any further. It only enacts that the conveyance shall pass every interest etc. which the conveying party may have in ‘the property conveyed’ and for the reasons above given tithe rentcharge is not such an interest.’
Scrutton LJ said that a tithe was not regarded as an interest in the land in respect of which it was payable, ans: ‘. . It was called in the language of lawyers of that day [1836] a ‘collateral hereditament’ which was held by a different title from that of the land itself.’ He referred to Chapman v Gatcombe and said: ‘That being so Section 63 of the Conveyancing Act 1881 does not assist the Appellant. It merely renders it unnecessary any longer to include in a conveyance the long string of general words, ‘all the estate, right, title, interest,’ etc., that used to be known by the name of the ‘all estate clause’, and, in the absence of a contrary intention appearing, treats the conveyance as containing them. The result is that the conveyance of the lands of Chapel House Farm to the Duchy of Lancaster did not carry with it the rectorial tithe rentcharge, as that rentcharge was not an ‘interest in’ the land out of which it issued but something collateral to and independent of it.’ He noted that the relevant conveyance had there begun with a conveyance of physical land and continued:- ‘So far it is plain that the conveyance would not include tithe rentcharge. But it is said this tithe rentcharge is an ‘interest in the land’, and that by virtue of Section 63 of the Conveyancing Act 1881, the conveyance is to be read as if these words were written in it. Now it is quite clear that before 1836 a conveyance of physical land with any number of general words added, such as ‘all the estate, right, property, interest, claim and demand’ in the land conveyed would not pass tithe, for the reason that tithe was a hereditament independent of and separate from the land on which it was charged and was not an interest in it or appertaining to it.’

Bankes LJ, Scrutton LJ
[1927] 1 KB 516
Law of Property Act 1925 63, Tithe Commutation Act 1836, Conveancing Act 1881 63
England and Wales
Citing:
Still Good Law – Chapman v Gatcombe 1836
One separate hereditament cannot be appurtenant to another. . .

Cited by:
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 16 November 2021; Ref: scu.263189

Munton v Greater London Council: CA 1976

With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary contracts: ‘First, when notice to treat is given, it binds the acquiring authority to purchase and the owner to sell at a price to be ascertained . . Second, when there is an unconditional agreement fixing the price – whether in writing or by word of mouth – it is the equivalent of a binding contract between the parties . . . Once, therefore a notice to treat has been served and there is an agreement on the price, a binding obligation is created which is equivalent to a contract between the parties.’

Lord Denning MR
[1976] 1 WLR 649
Law of Property Act 1925 840
England and Wales
Citing:
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .

Cited by:
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 16 November 2021; Ref: scu.183733

Goodman v Gallant: CA 30 Oct 1985

The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property ‘upon trust for themselves as joint tenants’ concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests. Severance of a beneficial joint tenancy results in a beneficial tenancy in common in equal shares.
Lord Justice Slade said: ‘In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of ‘resulting, implied or constructive trusts’ (see s 53(2) of the Law of Property Act 1925). In particular, in a case such as that, a person who claims to have contributed to the purchase price of the property which stands in the name of himself and another can rely on the well-known presumption of equity that a person who has contributed a share of the purchase price of property is entitled to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust (see, for example, Pettitt v Pettitt [1970] AC 777 at 813-814, per Lord Upjohn). . . .’

Slade, Purchase LJJ, Sir Roualeyn Cumming-Bruce
[1986] Fam 106, [1985] EWCA Civ 15, [1986] 1 FLR 513, [1986] 2 WLR 236
Bailii
Trustee Act 1925
England and Wales
Citing:
Cited – Wilson v Wilson CA 1963
. .
Cited – Leake (formerly Bruzzi) v Bruzzi CA 1974
The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments . .
Cited – Pink v Lawrence CA 1977
Buckley LJ (with whom the other members of the Court agreed) said that: ‘Where there is an express declaration of trust, the doctrine of constructive trusts cannot be referred to contradict the expressly declared trust. The doctrine of constructive . .
rejected – Bedson v Bedson CA 1965
The parties, a married couple disputed the shares in which the matrimonial home, formerly held by them as joint tenants would be held after severance o that joint tenancy.
Held: The wife was entitled to a half share in the property.
Cited by:
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Clarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
Cited – Pudner and Another v Pudner CA 27-Feb-2006
The parties challenged the validity of a will, and claimed the house by survivorship. The house had been conveyed into joint names, but the solicitors on registration had declared it a tenancy in common. This was said to have been a mistake.
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .

Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 16 November 2021; Ref: scu.181824

Half Moon Bay Limited v Crown Eagle Hotels Limited: PC 20 May 2002

Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent’s predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners.
Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered.

Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton
[2002] UKPC 24, (Appeal No 31 of 2000)
PC, PC, PC, Bailii
Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica)
England and Wales
Citing:
Cited – London County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land, Commonwealth

Updated: 15 November 2021; Ref: scu.171198

GPE (Hanover Square) Ltd v Transport for London: UTLC 28 May 2013

UTLC COMPENSATION – compulsory purchase – preliminary issue – freehold and long leasehold interests subject to occupational leases – whether value of interests to be assessed on assumption that terms of leases were as they would have been if no proposal to acquire – held they should not – Land Compensation Act 1961 ss 5 and 9

[2012] UKUT 417 (LC)
Bailii
Land Compensation Act 1961 5 9
England and Wales

Land, Damages

Updated: 15 November 2021; Ref: scu.512302

Pitman v Nuneaton and Bedworth Borough Council: UTLC 21 May 2013

UTLC BLIGHT NOTICE – preliminary issue – subject property sold by claimants’ mortgagee in possession before Lands Chamber considered counter-notice – whether deemed withdrawal of blight notice – whether compensation could be awarded for loss – claimants’ hardship – reference struck out as having no reasonable prospect of success

[2013] UKUT 246 (LC)
Bailii
England and Wales

Land

Updated: 15 November 2021; Ref: scu.512307

Menelaou v Bank of Cyprus Plc: ChD 19 Jul 2012

On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank employee ineffectively simply changed the name on the charge. They made further a loan, but the secuity was ineffective. The bank claimed in just enrichment.
Held: As regards the totality of the purchase price of Great Oak Court, it was not discharged by the use of monies belonging to the Bank. This both eliminates the claim that Great Oak Court is pro tanto held on trust for the Bank and destroys the traditional route to subrogation to an unpaid vendor’s lien.

David Donaldson QC
[2012] EWHC 1991 (Ch)
Bailii
England and Wales
Citing:
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .

Cited by:
Appeal from – Menelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
At ChD – Menelaou v Bank of Cyprus UK Ltd CA 4-Jul-2013
The court set out answers to consequential questions raised by their judgment, and the form of declaration required. . .
At First Instance – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 November 2021; Ref: scu.512281

Maksymenko and Gerasymenko v Ukraine (LS): ECHR 16 May 2013

ECHR Article 1 para. 1 of Protocol No. 1
Deprivation of property
Public interest
Invalidation ten years after the event of privatisation of hostel and all subsequent transfers of property without compensation: violation
Facts – In 2004 the applicants purchased a hostel that had been privatised in 1995 from S., a private company in liquidation. However, in 2006 the domestic courts invalidated the original 1995 decision to privatise the hostel and all subsequent transfers of property and ruled that ownership of the hostel was to be transferred to the town council. The applicants were awarded compensation to be paid by S, but this was never paid. In 2007 the regional court of appeal found in a separate case that the privatisation of another hostel in 1995 had been lawful, since hostels did not form part of State housing stock. Subsequently, the town council sold to their occupants twelve of the fourteen apartments at the hostel that had been purchased by the applicants.
Law – Article 1 of Protocol No. 1: There had been a deprivation of property which amounted to interference with the applicants’ right to the peaceful enjoyment of their possessions. The decision of 2006 invalidating the 1995 decision to privatise was based on a provision of national law which appeared unclear as there was no single approach at national-court level on whether ‘hostels’ were caught by the prohibition on privatising ‘housing stock’. The State authorities had, with a view to protecting the housing rights of others, corrected what they considered to be an erroneous interpretation of the law in force more than ten years earlier. In this context, the principle of good governance had particular importance and in addition to imposing an obligation on the authorities to act promptly to correct a mistake, could also require the payment of adequate compensation or another type of appropriate reparation. Before taking the decision to sell the hostel to the applicants, the board of creditors had informed the State authorities of possible complications but in January 2004 the town mayor had explicitly refused to take over ownership of the hostels. A year later the prosecutor had instituted court proceedings seeking to invalidate the contract of sale of the hostel on the grounds that the hostel should not have been privatised in the first place. However, a year after the decision satisfying the prosecutor’s claim was upheld by a higher court, 85% of the hostel apartments had been sold on to their occupants. This confirmed that the State did not intend to keep the hostel for use as social housing. Lastly, the applicants had not received any compensation for the property. Although the domestic courts had ordered S. to pay compensation, they must have been aware by then that the company was already insolvent. In such circumstances, the Court was not convinced that the applicants were required to institute further proceedings to claim damages from the State and so dismissed the Government’s objection in that regard. Accordingly, even assuming the interference in question was based on clear and foreseeable provisions of the national law and was aimed at protecting the housing rights of others, the fact that the applicants, who were bona fide purchasers, were unable to obtain compensation for their losses, which had been inflicted on them by the inconsistent and erroneous decisions of the State authorities, constituted a disproportionate burden.
Conclusion: violation (unanimously).
Article 41: EUR 6,127 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage.

49317/07 – Legal Summary, [2013] ECHR 543
Bailii
European Convention on Human Rights
Human Rights
Citing:
Full Judgebt – Maksymenko and Gerasymenko v Ukraine ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 14 November 2021; Ref: scu.510971

Newhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs: CA 14 Jun 2013

Lloyd, Lewison, Gloster LJJ
[2013] EWCA Civ 673
Bailii
The Newhaven Harbour and Ouse Lower Navigation Act 1847, Commons Act 2006, Newhaven Harbour Improvement Act 1878
England and Wales
Citing:
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Appeal from – Newhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
See Also – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another CA 27-Mar-2013
The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties. . .

Cited by:
At CA (2) – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.510865

Pole and Another v Peake and Another: CA 17 Jul 1998

The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the rights, saying that the extent of enjoyment now claimed was unreasonable.
Held: The rights granted were widely stated and included rearing birds.

[1998] EG 125, [1998] EWCA Civ 1229, [1998] NPC 121
Bailii
England and Wales
Citing:
Cited – White v Grand Hotel Eastbourne Ltd CA 28-Oct-1912
A private dwelling house, to which a right of way was appurtenant, was converted into a hotel.
Held: A right of way granted for general purposes is not to be restricted to access to the land merely for such purposes as were reasonably required . .
Cited – Johnstone v Holdway 1963
. .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Farrer v Nelson 1885
The plaintiff was tenant of a farm over which the defendants’ predecessor had reserved shooting rights. The defendants had brought pheasants in coops on to land very close to the plaintiffs’ farm. The came onto the farm damaging his crops. The . .
Cited – Peech v Best CA 1931
The defendant owned a 700 acre farm. He granted to the plaintiff ‘the exclusive right of shooting and sporting in over and upon it’ for a term of fourteen years. With still some four years of the term to run, he conveyed 12 acres of the farm for the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.144708

Todrick v Western National Omnibus Co Ltd: ChD 1934

A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public highway’ and across it onto another road, together with a right to construct an extension of that road, as defined by reference to points marked on a plan. The grant of a right of way was in unrestricted language, but the roadway in question was very narrow and was contained by a retaining wall to prevent it slipping down the valley. It was argued that ‘Here is a reservation of a right of way in unlimited language, and, therefore, we can use this right of way for any type of vehicle and any purpose for which the most extensive right of way can be used.’
Held: Farwell J applied the principle that: ‘in judging whether there is an excessive user of the right regard must be had to ‘the circumstances of the case, the situation of the parties and the situation of the land.’ Farwell J accepted a submission that the grant was not an easement but a personal license reserved to the original vendor which was lost when the vendor parted with the property in question. The plaintiff therefore got the land free from any right of the defendant to enter on it for any purpose.

Farwell J
[1934] Ch 190
England and Wales
Cited by:
Appeal from – Todrick v Western National Omnibus Co Ltd CA 2-Jan-1934
The plaintiff owned a house in Cornwall and a private roadway to the South leading from a highway to the west to garages at the eastern end, which also belong to the plaintiff. The property which included the roadway and the garages had been . .
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
Approved – Robinson v Bailey CA 1948
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a . .
Cited – Minor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.254433

Jones v Price: 3 Jun 1836

Plea of enjoyment of right of common for thirty years before the commencement of the suit, Held sufficient, without saying thirty years next before.

[1836] EngR 777, (1836) 3 Bing NC 52, (1836) 132 ER 329 (A)
Commonlii
England and Wales

Land

Updated: 14 November 2021; Ref: scu.315109

Segro (Free Movement of Capital – Opinion): ECJ 31 May 2017

References for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Article 63 TFEU – Free movement of capital – Indirect discrimination – Contractual usufructuary rights or rights of use in agricultural land – Prohibition of the acquisition of such rights by persons other than members of the close family of the owner of the agricultural land – Legislation prescribing the cancellation of such rights where that condition not satisfied – No justification – Infringement of national legislation on exchange control – Prevention of abusive practices – Prevention of property speculation – Articles 17 and 47 of the Charter of Fundamental Rights of the European Union – Inapplicability of the Charter of Fundamental Rights of the European Union independently of the question of infringement of the freedoms of movement

C-52/16, [2017] EUECJ C-52/16_O, ECLI:EU:C:2017:410
Bailii
European

Human Rights, Land

Updated: 14 November 2021; Ref: scu.668591

White v Grand Hotel Eastbourne Ltd: CA 28 Oct 1912

A private dwelling house, to which a right of way was appurtenant, was converted into a hotel.
Held: A right of way granted for general purposes is not to be restricted to access to the land merely for such purposes as were reasonably required at the date of the grant; therefore a right of way for general purposes to a private dwelling-house is not affected by the house being turned into an hotel.
The conversion of a private residence on the dominant tenement to a lodging house for the drivers of cars whose owners stayed at a nearby hotel owned by the defendants was held not to subject the easement to a use not contemplated at the time of the grant in 1883. At that time, the dominant tenement had one resident with two vehicles. After the conversion it had ‘many residents of a shifting character with vehicles that do not belong to them’. Nevertheless, the Court of Appeal held that the different use was within the terms of the grant. Hamilton LJ said: ‘The house in the present case was used as a private dwelling-house in 1883, but with the consent of a third person it might be, as in fact it was, turned into a house which could be used to trade.’

Lord Cozens-Hardy MR, Hamilton LJ
[1913] 1 Ch 113, [1912] UKLawRpCh 117
Commonlii
England and Wales
Cited by:
Cited – Pole and Another v Peake and Another CA 17-Jul-1998
The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.264033

Todrick v Western National Omnibus Co Ltd: CA 2 Jan 1934

The plaintiff owned a house in Cornwall and a private roadway to the South leading from a highway to the west to garages at the eastern end, which also belong to the plaintiff. The property which included the roadway and the garages had been conveyed to his predecessor in title by N by a conveyance which contain the reservation to N and his successors of a perpetual right-of-way along the roadway with power to extend some yards to land further East belonging to N which was shown on a plan attached to the conveyance and coloured blue. Subsequently N bought some land north of the blue land and by a deed a right to extend the roadway to this land was substituted for the right to extend it directly onto the blue land. The result of this was that when the roadway was so extended it could substantially only obtain access to the Blue land over an intervening strip of the Land to the north of it. The defendant company having purchased the blue land and the land to the north built a garage for motor omnibuses on the blue land and proceeded to extend the roadway to the intervening strip and carry it over the strip to the Blue land. As part of the blue land where the garage stood was much higher than the road way defendant company in order to obtain a gradual slope continued the roadway on the plaintiff’s land by means of a concrete ramp, which, by the time it reached the 5 ft wall between the plaintiffs land and the intervening strip was almost the height of the wall. The plaintiff objected strongly to the making of this ramp, which made access to his garage more difficult, and brought an action claiming a) that the defendants had no right of way over the roadway for the reason that the right alleged to have been retained the right alleged to have been given pertained only to the Blue land to which there was no direct access from the roadway; or alternatively b) that there had been excessive use of the right 1) by reason of the building of the ramp and 2) by reason of the user of the roadway for motor buses.
Held: it was sufficient that a right of way should be beneficial in respect of the ownership of the Land to which it purported to be made appurtenant, and there need be no physical contiguity between the way and the dominant tenement; but 2) there had been excessive user in regard both to the building of the ramp and to the user of the roadway for motor omnibuses

Lord Hanworth MR, Romer and Maugham LJJ
[1934] Ch 561, [1934] All ER Rep 25, (1934) 103LJ Ch 224, (1934) LT 163, (1934) 78 Sol Jo 318
England and Wales
Citing:
Appeal from – Todrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 November 2021; Ref: scu.669787

Cornerstone Telecommunications Infrastructure Ltd v University of The Arts London: UTLC 1 Sep 2020

ELECTRONIC COMMUNICATIONS CODE – CODE RIGHTS – paragraph 21 of the Code – whether prejudice to the site provider outweighs the public benefit of imposing an agreement – whether prejudice can be compensated in money – redevelopment by a third party – interim Code agreement, jurisdiction – terms of agreement – upgrading, sharing, access, compensation, equipment, electricity supplies, exclusion zones.

[2020] UKUT 248 (LC)
Bailii
England and Wales

Land, Utilities

Updated: 12 November 2021; Ref: scu.653287

Galloway v Earl of Minto: HL 12 Dec 1921

Held (aff. judgment of Second Division) that a heritor whose teinds have been valued in money but have had a stipend localled upon them in victual, is bound, where the stipend exceeds the amount of the valued teinds, either to pay the amount or to surrender the teinds in perpetuity. He is not entitled to tender for the particular year the amount of his teinds as valued.
Where the teinds are unvalued and the stipend localled exceeds one-fifth of the rent, the heritor must either pay the amount of the stipend or lead a Valuation and surrender.

Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Sumner, and Lord Wrenbury
[1921] UKHL 46, 59 SLR 46
Bailii
Scotland

Land

Updated: 12 November 2021; Ref: scu.632645

JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

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 adequate consideration’. One element was that the same debt said to have been taken on by the purchaser, was in fact proved against the company on its subsequent insolvency. The criticisms levelled at the Lord Ordinary in relation to this matter missed their target: ‘His treatment of this chapter of evidence was not unbalanced, and did not indicate any failure to understand it or to take it into account. More generally, he gave careful consideration to the arguments and evidence adduced on behalf of the liquidator, and explained why he nevertheless concluded that the liquidator’s case should be rejected.’
Lord Reed summarised the approach to a judgment of the Court of Session: ‘It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.’
and ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’

Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath, Lord Toulson
[2014] 1 WLR 2600, [2014] UKSC 41, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, UKSC 2013/0083
Bailii Summary, Bailii, WLRD, SC, SC Summary, SC, SC Summary
Insolvency Act 1986 242
Scotland
Citing:
Outer House 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. . .
Cited – 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. . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – John Stewart Hamilton and others v Allied Domecq Plc OHCS 1-Aug-2003
. .
Cited – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Cited – Housen v Nikolaisen 28-Mar-2002
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .

Cited by:
Cited – Carlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Cited – Walsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .

Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Leading Case

Updated: 12 November 2021; Ref: scu.533880

Celsteel Ltd v Alton House Holdings Ltd: ChD 1985

An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The court generally considered the availability of a remedy for infringement of a right of way.
Scott J said: ‘There emerge from the three cases I have cited two criteria relevant to the question whether a particular interference with a right of way is actionable. The interference will be actionable if it is substantial. And it will not be substantial if it does not interfere with the reasonable use of the right of way.’

Alston J, Scott J
[1985] 1 WLR 204
Land Registration Rules 1925 258, Land Registration Act 1925 70(1)(a)
England and Wales
Citing:
Applied – Clifford v Hoare 1874
. .

Cited by:
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 – Besley v John CA 29-Oct-2003
The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf . .
Applied – Thatcher v Douglas and Another CA 19-Dec-1995
The Court rejected the contention that Celsteel was wrongly decided and that the Rule only applied to legal easements. The court followed Celsteel and applied it to equitable easements, holding them to be overriding interests by virtue of Rule 258. . .
Cited – Bhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Mentioned – Sommer and Another v Sweet and Another CA 10-Mar-2005
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – West and Another v Sharp CA 12-May-1999
A deed granted a right of way 40 ft wide, but the land owner narrowed the area of land over which the easement was enjoyed. The easement dominant owner did not object for many years.
Held: The deed was clear, and the original extent of the . .
Cited – B and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
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.

Registered Land, Land

Leading Case

Updated: 11 November 2021; Ref: scu.187687

Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd: CA 1982

The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.’ and ‘If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it – on the faith of which each of them — to the knowledge of the other — acts and conducts their mutual affairs — they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not — or whether they were mistaken or not — or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.’

Lord Denning MR, Brandon LJ
[1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27
England and Wales
Cited by:
Cited – Parry v Edwards Geldard (A Firm) ChD 1-May-2001
The court had to decide the measure of damages. The claimant had lost the opportunity to acquire without charge a milk quota. The claimant asserted an estoppel by convention. This failed. Also the judge had not properly allowed for the marriage . .
Cited – Wilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
Cited – Valentine v Allen and others CA 4-Jul-2003
There was a claim in trespass arising from mistakes arising on the setting up of a small residential development. An easement necessary to the enjoyment of the plots sold off, was required over land no longer owned by the grantor at the time of the . .
Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
Cited – Strover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
Cited – Norwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
Cited – Stancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Scottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
Cited – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .

Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Land, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.180371

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Coles and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

Swift 1st Ltd v Colin and Others: ChD 27 Jul 2011

The parties disputed the effects of charges over a property. A charge had not been registered, but merely noted on the registers. The defendants had purchased it from another chargee acting under a power of sale. The defendants had applied to be registered, but the Land Registry had declined to register them.
Held: The Land Registry should have registered the transfer.
Purle QC J said: ‘it seems to me that the claimant had full power of sale over the freehold, notwithstanding that its charge was not substantively registered and that it did not become the registered proprietor of any charge. The power of sale derives not from the niceties of the Land Registration legislation, but from the Law of Property Act 1925, and all that is required is a mortgage by deed. For section 88 to be engaged, all that is required, so far as relevant to the present case, is a charge by way of legal mortgage. The fact that this charge by way of legal mortgage was in the event unregistered, is, in my judgment, neither here nor there. It is still such a charge within the meaning of the Law of Property Act 1925, and section 88 in particular. In those circumstances it seems to me that the claimant is entitled to succeed on that ground alone.’

Purle QC J
[2011] EWHC 2410 (Ch)
Bailii
Law of Property Act 1925 85 88 101(6)
England and Wales
Citing:
Cited – in Re White Rose Cottage ChD 1964
The court held that under a mortgage by deposit under seal, a true equitable mortgage – that the expression ‘the mortgaged property’ in section 101 meant the property over which the mortgage deed purported to extend and was not limited to an . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land

Updated: 11 November 2021; Ref: scu.444780

Western Bank Ltd v Schindler: CA 1977

The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could exercise the powers conferred by section 36(2) of the Act in a case where no sums being due under the mortgage and there being no default.
Held: The Court found it possible to construe section 36 of the Act of 1970 in such a way as to avoid what the court perceived would be an obvious lacuna if the words were given a literal meaning. The section in its terms was enacted in order to deal with problem which had arisen following Caunt; and which had been the subject of examination and recommendation by the Payne Committee. However an insertion by a judge must not be too big, or too much at variance with the language used by the legislature.
Lord Justice Buckley: ‘If sub-s (1) [of section 36] is read literally, the conditional clause introduced by the words ‘if it appears to the court’ (which I shall refer to as ‘the conditional clause’) appears to restrict the operation of the section to cases in which some sum is due or some default has taken place and remains unremedied when the application comes before the court. This, however, seems to me to lead to a ridiculous result.’ The words of the section being unfair and irrational, the court ‘must therefore investigate whether the section is capable of some other construction’ and ‘Section 36 is an enabling section which empowers the court to inhibit the mortgagee’s right to take possession. It confers a discretionary power on the court to achieve this result. It is, in my judgment, impossible to spell out of it a positive abrogation of an important property right, and, moreover, an abrogation of it only in particular circumstances.’
Lord Justice Scarman saw three ways forward: ‘The first is to treat the section as having a ‘casus omissus’ which only Parliament can fill. The second . . . is to treat the section as excluding the common law right to possession from mortgages of dwelling houses. The third is to treat the section as giving the court a power to delay making an order in all cases where, upon whatever ground, a mortgagee is seeking possession of a mortgaged dwelling house.’ and ‘Judicial legislation is not an option open to an English judge. Our courts are not required, as are, for instance, the Swiss courts (see the Swiss Civil Code, arts 1 and 2), to declare and insert into legislation rules which the judge would have put there had he been the legislator. But our courts do have the duty of giving effect to the intention of Parliament, if it be possible, even though the process require a strained construction of the language used or the insertion of some words in order to do so; see Luke v Inland Revenue Commissioners [1963] AC 557, per Lord Reid at p.577. The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw. Suffice it to say that before our courts can imply words into an Act the statutory intention must be plain and the insertion not too big, or too much at variance with the language in fact used by the legislature. The courts will strain against having to take the first of the three courses I mentioned; that is to say, leaving unfulfilled the ‘casus omissus’. In the case of this section, is there an acceptable reading which would enable us to give effect to Parliament’s intention within the principle which I think governs the problem?
It would be going too far, in my judgment, to adopt the second course. It would, indeed, be judicial legislation to read a section conferring discretionary powers on the court as abrogating a common law right. I am not prepared to go that far in an attempt to make sense. If one had to go that far, then it would be for the legislature, not the courts, to take the step.’
Lord Justice Goff: Section 36 could not be held, by a side wind, to have abrogated the mortgagee’s proprietary right to take possession: ‘This would not, I think, be applying the principle of liberal construction to avoid absurdity stated in Luke v Inland Revenue Commissioners [1963] AC 577, but disregarding the statute or overriding it, which as Ungoed-Thomas J. pointed out in In re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282, and in my judgment rightly pointed out, is what the court is not allowed to do.’ There were only two courses open to the court: to construe the section as conferring a discretion in all cases; or to construe the section literally and face whatever anomalies or absurdities that produced. He preferred the latter; on the ground that he could not see how any sensible effect could be given to the powers in subsection (2) if there was nothing to be done by the mortgagor which an adjournment, stay, suspension or postponement would enable to be done within a time which the court was required to decide was a reasonable time.

Lord Justice Scarman, Lord Justice Buckley, Lord Justice Goff
[1977] Ch 1
Administration of Justice Act 1970 36
England and Wales
Cited by:
Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.230370

Tinsley v Milligan: CA 1992

The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been raised, the court should keep in mind that the underlying principle is the so-called ‘public conscience’ test. The Court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment. The detailed principles summarised by Lord Justice Kerr in the Euro-Diam case, [1900] 1 QB. 1, and distinctions such as that between causes of action which arise directly ex turpi causa and causes of action to which the unlawful conduct is incidental are valuable as guidelines. But they are no more than guidelines. Their value and justification lie in the practical assistance they give to courts by focusing attention on particular features which are material in carrying out the balancing exercise in different types of case’.
Ralph Gibson LJ dissented, observing that: ‘in so far as the basis of the ex turpi causa defence, as founded on public policy, is directed at deterrence it seems to me that the force of the deterrent effect is in the existence of the known rule and in its stern application. Lawyers have long known of the rule and must have advised many people of its existence.’

Lord Justice Lloyd, Lord Justice Nicholls
[1992] Ch 310, (1991) 63 P and CR 152, [1992] 2 WLR 508, [1992] 2 All ER 391
Law of Property Act 1925 193(1)
England and Wales
Citing:
Cited – Euro-Diam CA 1900
The court must bear in mind when reaching a decision, the ‘public conscience’ element, weighing, or balancing, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value . .
Cited – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
Cited – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – Glamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .

Cited by:
Appeal from – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Applied – Silverwood (Executor of the Estate of Daisy Silverwood) v Silverwood; and Whiteley CA 15-Apr-1997
The deceased had withdrawn a capital sum from her bank, and given it to her grandchildren before claiming income support. She had not declared the sums given away. The judge (Harry Walker) had held that there had been no gift, and that a resulting . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – other

Leading Case

Updated: 11 November 2021; Ref: scu.193595

Southwark London Borough Council v Williams: CA 1971

No Defence of Homelessness to Squatters

The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best determined by political decision making processes. Squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was ‘an obstinate and longstanding state of affairs’, rather than an immediate or emergent threat. The court denied that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft.
Lord Denning MR said: ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.’
Edmund Davies LJ said: ‘But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -necessity can very easily become simply a mask for anarchy.’

Lord Denning MR, Edmund-Davies LJ
[1971] 1Ch 734, [1971] 2 All ER 175, [1971] 2 WLR 467
England and Wales
Cited by:
Cited – Monsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Regina v Burns, Paul CACD 27-Apr-2010
The defendant appealed against his conviction for assault. He had picked up a sex worker, driven away, but then changed his mind, and forcibly removed her from the car when she delayed. He now argued that he had the same right at common law to . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime, Housing, Land

Leading Case

Updated: 11 November 2021; Ref: scu.183171

Feakins v The Scottish Ministers: ECJ 19 Jun 2014

ECJ Advocate General’s Opinion – Common agricultural policy – Regulation (EC) No 1782/2003 – Regulation (EC) No 795/2004 – Single payment – Hardship case rule – National reserve – Cumulation of entitlements

Kokott AG
C-335/13, [2014] EUECJ C-335/13 – O, [2014] EUECJ C-335/13
Bailii, Bailii
Regulation (EC) No 1782/2003, Regulation (EC) No 795/2004
European

Land, Agriculture

Updated: 11 November 2021; Ref: scu.527239

Cobbe v Yeomans Row Management Ltd and Others: ChD 25 Feb 2005

Principles for Proprietary Estoppel

A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement existed. Claims were made for a constructive trust, proprietary estoppel and restitution.
Held: The court set out principles for establishing a proprietary estoppel. The defendant had encouraged the plaintiff to make applications for permission, and sought later to take unconscionable advantage of them. There was no reason in principle why a constructive trust should not be as equally available as a remedial instrument in a ‘post-acquisition’ case as in a ‘pre-acquisition’ case in order to prevent injustice from the defendant’s unconscionable conduct in circumstances where the facts are capable of giving rise to a proprietary estoppel. A lien was granted in favour of the claimant over the property.

Etherton J
[2006] 1 WLR 2964, [2005] EWHC 266 (Ch)
Bailii
Law of the Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Walford v Miles HL 1992
Agreement to Negotiate is Unworkable as a Contract
The buyers and sellers of a company agreed orally for the sellers to deal with the buyers exclusively and to terminate any negotiations between them and any other competing buyer. The sellers later decided not to proceed with their negotiations with . .
Approved – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Cited – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Mentioned – Pridean Limited v Forest Taverns Limited; Hipwell and Marshall CA 28-Nov-1996
The claimant owned a public house. It set out with the defendant to to acquire the premises or to take a lease of them. The defendant went into occupation, and carried out works. Negotiations continued, but broke down over the form of protection to . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Ramsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Holiday Inns Inc v Broadhead 1974
The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – Ravenocean Ltd v Garner ChD 19-Jan-2001
The claimant asserted a constructive trust arising from an oral agreement by the defendant to sell his land to the plaintiff. It was conditional on the claimant obtaining planning permission. Pursuant to the agreement, and relying on it, the . .
Cited – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Cited – Kinane v Mackie-Conteh CA 1-Feb-2005
The court upheld a declaration by the trial judge that the claimant was an equitable chargee under an equitable charge of the defendant’s property, notwithstanding that the claimant relied on an oral agreement by the defendant for the grant to the . .
Cited – Carl Zeiss Stiftung v Herbert Smith No.2 CA 1969
There had been long running disputes between the plaintiffs and a defendant in which the plaintiffs claimed that all of the defendant’s assets were held for the plaintiffs on trust. Before those claims had been resolved the plaintiff brought a . .
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 – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Cited by:
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Cited – Powell and Another v Benney CA 5-Dec-2007
The claimants asserted an interest under a constructive trust in land held by the defendant.
Held: The judge had found acts of detriment suffered by the claimants. Though elements of the judgment might be criticised, the appeal failed. . .
Cited – London Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
Cited – St Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
Appeal from – Yeoman’s Row Management Ltd and Another v Cobbe CA 31-Jul-2006
The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .

Lists of cited by and citing cases may be incomplete.

Land, Trusts, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.223286

In re Sir Thomas Spencer Wells; Swinburne-Hanham v Howard: CA 1933

In the case of a dissolved corporation, its assets vest in the Crown bona vacantia. The equity of redemption is an interest or equitable right inherent in the land. Equity recognises the pre-eminence of the right to redeem, with the consequence that the mortgaged property was owned by the mortgagor, subject to the mortgage.
Lawrence LJ referred to part of the judgment of Wright J in Re Higginson and Dean dealing with the position of a debt owing to a dissolved company and expressed doubt whether the Crown could sue for such a debt unless there was a trust, and said: ‘In my judgment this doubt is not justified; long before choses in action became transferable at common law they were regarded in equity as assignable and could be dealt with inter vivos and on the death of the owner devolved upon his legal personal representative as part of his personal estate. The statement in Blackstone’s Commentaries, vol. I., p.484, that the debts of a corporation either to or from it are totally extinguished by its dissolution and similar statements made by Kyd and Grant must either be read as having reference merely to the rights and liabilities of the individual corporators or else are obsolete. Moreover I find it difficult to reconcile the doubt expressed by the learned judge with his decision that the Crown had the right to recover its distributive share of the assets of the bankrupt’s estate from the trustee. There is no difference in principle between a right to enforce payment of a share in a trust fund in the hands of a trustee and the right to enforce payment of a debt – both are choses in action and personal property which admittedly would pass to the Crown as bona vacantia in the case of persons dying intestate without next of kin.’

Lawrence LJ
[1933] Ch 29
England and Wales
Cited by:
Cited – HSBC Bank Plc v Dyche and Another ChD 18-Nov-2009
The parties disputed the claimed beneficial interest of the second defendant. The second defendant (C) said that it had been purchased for him by the first defendant (D) from C’s trustee in bankruptcy, and was thereafter held in trust for him on the . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.219903

George Wimpey UK Ltd v VI Construction Ltd: CA 3 Feb 2005

A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was incorrect. The appeal was allowed: ‘There is, as it seems to me, a paradox in the notion of what an honourable and reasonable person would do in the context of an arm’s-length commercial negotiation. This is a context in which honour (or honesty) and rationality (or reasonableness) are frequently not on speaking terms.’
The court continued to consider the place of mistake: ‘The phrase ‘honest and reasonable’ is not a term of art. It is a judicial attempt to sketch a line beyond which conduct may be regarded as unconscionable or inequitable. Its duality, however, is a recognition that honesty alone is too pure a standard for business dealings because it omits legitimate self-interest; while reasonableness alone is capable of legitimising Machiavellian tactics.
Mistake is a concept which sits awkwardly in this space. Absent a prior accord which has simply not been carried into effect, absent also a dishonest inducement to contract, one is looking for a mistake on the claimant’s own part which the defendant was honour-bound, despite his own legitimate business interests, to point out to him. I am unable to accept that this was such a case on any tenable view of the evidence.
There are at least two kinds of mistake. One is a literal misunderstanding of some fact material to the proposed contract. The other is an error of judgment in entering into the contract. I find it difficult to think that the second kind has any relevance to the law of unilateral mistake. Nobody is bound, even in honour, to help his opposite number to negotiate to the best advantage.’
The defendant was entitled to assume that the claimant knew what it was agreeing to. Dishonesty had not been pleaded, and the judge was not entitled to find it.
Sedley LJ discussed the situation as to representations made during a negotiation: ‘There is, as it seems to me, a paradox in the notion of what an honourable and reasonable person would do in the context of an arm’s length commercial negotiation. This is a context in which honour (or honesty) and rationality (or reasonableness) are frequently not on speaking terms. I doubt that [counsel’s] submission that the two epithets qualify each other does more than compound the paradox.
Take the present case. An honourable person negotiating for [the Defendant] would probably have asked [the Claimant] if they realised that E had been left out, but I very much doubt whether a reasonable negotiator would have done so. His first duty would have been to his own principal, whose interests undoubtedly lay in leaving E out and not alerting [the Claimant] to the omission.,br />The phrase ‘honest and reasonable’ is not a term of art. It is a judicial attempt to sketch a line beyond which conduct may be regarded as unconscionable or inequitable. Its duality, however, is a recognition that honesty alone is too pure a standard for business dealings because it omits legitimate self-interest; while reasonableness is capable of legitimising Machiavellian tactics.’

Lord Justice Peter Gibson Mr Justice Blackburne Lord Justice Sedlay
[2005] EWCA Civ 77, Times 16-Feb-2005, [2005] BLR 135
Bailii
England and Wales
Citing:
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
Approved – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – A Roberts and Co Ltd v Leicestershire County Council ChD 1961
The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the . .
Cited – Riverlate Properties Ltd v Paul CA 1974
A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .
Cited – London Borough of Barnet v Barnet Football Club Holdings Ltd CA 30-Jul-2004
An application was made for the rectification of a transfer.
Held: The fact that the contract has been negotiated by a person who is not the decision-taker and has made an error is irrelevant unless it can be shown that the decision-taker . .
Cited – Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note) 1993
The court looked to various forms of knowledge which could be attributed to a party when considering a rectification. Knowledge may be proved affirmatively or inferred from circumstances. The various mental states which may be involved are (i) . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .

Cited by:
Cited – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – Connolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
connolly_bellwayChD2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 11 November 2021; Ref: scu.222174

Snelling and Another v Burstow Parish Council: ChD 24 Jan 2013

The parties disputed the application and interpretation of ancient statues relating to allotments. The land had been appropriated to allotments under the 1945 Act. The Council had argued that it had a power of sale under the 1908 Act subject to consent under the 1925 Act.
Held: The Council was correct in seeking the consent of the Secretary of State under section 8 of the 1925 Act, because the power of sale it sought to exercise to dispose of the Allotments was the power conferred by section 32 of the SHandA Act 1908 and not the power under section 27 of the Commons Act 1876.
Section 27 may not be entirely redundant- the Council did not rule out that there may be other kinds of allotments which were not, for whatever reason, swept up by section 33(4) of the SHandA Act 1908 and where section 27 still has some residual effect. But as regards the Hunter’s Moon Allotments, those did fall within section 33(4) of the SHandA Act 1908 and so were covered exclusively by the power of sale under section 32 of that Act, subject to the obtaining of the consent of the Secretary of State under section 8 of the Allotments Act 1925.

Vivien Rose
[2013] EWHC 46 (Ch)
Bailii
Inclosure and Improvement of Commons Act 1845 31, Commons Act 1876 27, Local Government Act 1894 5(2) 6, Small Holdings and Allotments Act 1908 32, Allotments Act 1925 8, Local Government Act 1972 126
England and Wales
Citing:
Cited – O’Byrne v Secretary of State for Environment, Transport and Regions and Another CA 17-Apr-2001
A tenant sought to buy a flat under the right to buy scheme but the flat was in the green belt. The land was held under provisions in the 1938 Act making the sale of any part conditional on the consent of the respondent. The local authority . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 11 November 2021; Ref: scu.470559

Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others: ChD 13 May 2010

The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are enforceable at the instance of the Authority only and not by third parties. Though it might have been intended that the agreement was almost as described by the claimants, they were not party to the section 106 agreement. However, it would substantially frustrate the statutory scheme contained in section 106 of the 1990 Act to interpret section 2 of the 1989 Act as invalidating section 106 agreements which benefit third parties.
A declaration would be futile: ‘Milebush claims no private law right enforceable against either Tameside or Hillingdon. It seeks declaratory relief against Tameside on the footing that it is directly affected by the interpretation placed upon the Principal Agreement. But why should the Court grant Milebush a declaration against Tameside in circumstances where, even if Milebush was right on the construction of clause 3.5 as it presently stands, Hillingdon would retain a discretion to decide not to enforce, or to vary, clause 3.5? It would be a pointless exercise.’

Arnold J
[2010] EWHC 1022 (Ch), [2010] 2 EGLR 93, [2010] NPC 58, [2010] JPL 1303, [2010] 20 EG 145, [2010] 30 EG 64
Bailii
Town and Country Planning Act 1990 106, Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Doubted – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Cited – Colchester Estates (Cardiff) v Carlton Industries plc ChD 30-Mar-1984
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a . .
Cited – Attorney-General ex rel. Scotland v Barratt Manchester Ltd CA 2-Jan-1990
Nicholls LJ discussed the nature and enforcement of agreements under section 106 of the 1990 Act, saying: ‘A section 106 agreement may be enforced against the original covenantor in contract, and against successors in title to the original . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – McCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Cited – R G Kensington Management Co Ltd v Hutchinson IDH Ltd ChD 2003
Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as . .

Lists of cited by and citing cases may be incomplete.

Land, Planning, Contract

Updated: 11 November 2021; Ref: scu.415090

Re Maddever: 1884

A specialty creditor who applied to set aside a conveyance as fraudulent under the statute 13 Eliz. c.5 was not barred by laches and could be brought at any time before his own claim as a creditor became statute-barred.

(1884) 27 Ch D 523
Cited by:
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 11 November 2021; Ref: scu.244181

Dalton v Henry Angus and Co: HL 14 Jun 1881

The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some reason the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. ‘. . the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.’
Lord Blackburn, delivering the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty: ‘Ever since Quarman v Burnett (1840) 6 M and W 499, [1840] EngR 182, it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H and N 488, [1861] EngR 170; Pickard v Smith 10 CB (NS) 470, [1861] EngR 71, Tarry v Ashton (1876) 1 QBD 314.’
Fry J (asked to give his opinion to the house said: ‘But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.’

Lord Selborne LC, Lord Blackburn, Fry J (advising)
(1881) 6 App Cas 740, [1881] UKHL 1
Bailii
England and Wales
Citing:
At first instance – Dalton v Henry Angus and Co 1877
Fry J said: ‘ . .I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part . .
Appeal from – Dalton v Henry Angus and Co CA 1878
. .

Cited by:
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Explained – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 11 November 2021; Ref: scu.187796

Heath v Kelly and Another: ChD 24 Jul 2009

The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain and unenforceable.
Held: The agreement appeared to have been made under a misapprehension as to the legal position. The mistake appeared to have been created by the party seeking to rely on it, and equity could refuse specific performance of the contract. The claimant had also delayed her action. Specific performance was refused. Declaration as to interests accordingly.

Purle QC J
[2009] EWHC 1908 (Ch), [2009] Fam Law 1044, [2010] 1 FLR 610, [2009] 2 P and CR DG21
Bailii
England and Wales
Citing:
Cited – Great Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
Cited – Milward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .
Cited – P and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
Cited – Williams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

In re Ellenborough Park: CA 15 Nov 1955

Qualifying Characteristics ofr Easement

Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus was rightly decided; for no such right can be granted (otherwise than by Statute) to the public at large to wander at will over an undefined open space, nor can the public acquire such a right by prescription.’ and
‘the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage, or than the use by the public of the gardens of Lincoln’s Inn Fields . . amount to joint occupation of that garden with the London County Council, or involve an inconsistency with the possession or proprietorship of the council as lessees.’
The shared recreational use of a communal private garden could be conferred upon the owners of townhouses built around and near it by means of easements.
To qualify as an easement:
(1) there must be a ‘dominant’ and ‘servient’ tenement;
(2) the right must ‘accommodate and serve’ the dominant tenement;
(3) the dominant and servient tenements must be owned by different persons; and
(4) the easement must be capable of forming the subject matter of a grant.

Lord Evershed MR, Birkett, Romer LJJ
[1956] 1 Ch 131, [1956] 3 All ER 667, [1955] EWCA Civ 4
Bailii
England and Wales
Citing:
Approved – Attorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
Cited – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .

Cited by:
Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Affirmed – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Land

Leading Case

Updated: 11 November 2021; Ref: scu.182997

Moore v Rawson: KBD 1824

Loss of Right of Light – Deemed Abandoned

The defendant denied infringement of the plaintiff’s right of light. An old building had a window in one side. That building was replaced by one with a blank wall. The defendant then erected his own building alongside the new blank wall.
Held: The right to light had been lost. The temporary disuse was a complete abandonment of the right. ‘Every man, prima facie, is entitled to enjoy all the light and air which come to his own land. The enjoyment of lights for twenty years, in a particuler mode, is presumptive evidence of a grant by the owner of the adjoining land of the privilege so to enjoy the light. Here, the former owners of the plaintiff’s premises enjoyed the light for that period, they must therefore be taken to have had a grant from some person capable of making it; and that being so, the right which was once vested in the owners of the plaintiff’s premises, could not be divested out of them, except by a release of the right so granted to them, or by a non user of the right for such a length of time as would warrant the presumption of a release. ‘

[1824] EWHC KB J28, [1824] 107 ER 756
Bailii
England and Wales

Land

Leading Case

Updated: 11 November 2021; Ref: scu.264575

Regina v Doncaster Metropolitan Borough Council ex parte Braim: 1986

The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently termed recreation. Even if the public’s use depended upon a bare licence, the Council would be obliged to comply with the section, unless reasonable notice of termination was given and had expired.
McCullough J said: ‘One further point remains. What quality of user ‘for purposes of public recreation’ is required before the land is ‘open space’ for the purposes of Section 123 (2A) of the Local Government Act 1972 as amended [which is a like provision to Section 122 (2A) in relation to disposal]? Mr Whybrow contends that it must be as of right, ie that user under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his licence exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. Where a licence has been given, there is no hardship or absurdity in a council having to choose between postponing its disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required.’

McCullough J
(1987) 85 LGR 233, (1986) 57 P and C R 1
Commons Registration Act 1965 1(2)(a), Local Government Act 1972 123(2A)
England and Wales
Cited by:
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 11 November 2021; Ref: scu.192159

Oliver v Symons: CA 15 Mar 2012

The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is not to say that it could never be the case that a purposive interpretation of an express grant, having regard to the purpose for which the right was granted, could justify a construction extending the width of a track beyond its physical dimensions. But in my view before the court could consider this possibility there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the objective which the parties must have intended. In this case there is evidence that some agricultural machinery can use the track without difficulty.’
The court was severely critical of the readiness of lawyers to run up very substantial and disproportionate legal bills. Ward LJ said: ‘I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.’

Ward, Stanley Burnton, Elias LJJ
[2012] EWCA Civ 267
Bailii
England and Wales
Citing:
Cited – VT Engineering Limited v Richard Barland and Co Limited ChD 1968
The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Cited – White v Richards CA 1993
A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .

Cited by:
Cited – Faidi and Another v Elliot Corporation CA 16-Mar-2012
Tenants appealed against a refusal of of the ourt to make an order requiring the landlord to enforce a covenant as against a co-tenant said to be causing a nuisance. The co-tenant had, with the landlord’s consent installed wooden floors through . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 November 2021; Ref: scu.452135

North Eastern Properties Ltd v Coleman and Another: CA 19 Mar 2010

The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts had omitted an agreement for the payment of a 2% finders fee on exchange. The appellants intended to sell on the flats to buyers as they found them, by the assignment of the contracts, and the terms had been omitted at the appellants’ request to avoid its benefit being assigned to the sub-purchasers.
Held: The buyers’ appeals failed. It had not been the intention of the 1989 Act to make it easier for purchasers to escape from contractual liability, though ‘because of the rigorous discipline which it imposes upon parties to land contracts, it does indeed enable persons who have genuinely contracted to do just that.’ It was legitimate to interpret the 1989 Act so as to avoid the creation of an injustice, and ‘there is nothing contrary to common sense in construing such a clause as having the alternative meaning that the parties have agreed that the terms of some other part of the composite transaction are not to be conditions for the performance of the land contract.’
In this case the notices to complete gave an unreasonably short time period for completion of the construction works, and the purchaser could not rely on them.
Briggs J set out the principles: ‘A party seeking to avoid a land contract under section 2 must identify a term which the parties have expressly agreed, which is not to be found in the single, or exchanged, signed document. It is not sufficient merely to show that the land contract formed part of a larger transaction which was subject to other expressly agreed terms which are absent from the land contract. The expressly agreed term must, if it is required by section 2 to be included in the single document, be a term of the sale of the land, rather than a term of some simultaneous contract (whether for the sale of a chattel or the provision of a service) which happens to take place at the same time as the land contract, and to form part of one commercial transaction. Section 2(1) does not prohibit parties from structuring a transaction, for example, for the sale of the whole of a company’s assets, in such a way that the land sale is dealt with in a different document from the sale of stock, work in progress or goodwill, unless the sale of the land is conditional upon the sale of the other assets. For an illustration of this point, see Grossman v. Hooper [2001] 2 EGLR 82, paras 19-22, per Chadwick LJ.
. . In my judgment, the apparent disharmony constituted by the dicta on this point may be reconciled as follows: (i) Nothing in section 2 of the 1989 Act is designed to prevent parties to a composite transaction which includes a land contract from structuring their bargain so that the land contract is genuinely separated from the rest of the transaction in the sense that its performance is not made conditional upon the performance of some other expressly agreed part of the bargain. Thus, in Chadwick LJ’s example in Grossman v. Hooper [2001] 2 EGLR 82, parties may agree to the sale and purchase both of a house and of its curtains and carpets in a single composite transaction. None the less it is open to them to agree either (a) that completion of the purchase of the house is dependent upon the sale of the carpets and curtains, or (b) that it is not. They are free to separate the terms of a transaction of type (b) into two separate documents (one for the house and the other for the carpets and curtains) without falling foul of section 2. They may also agree to structure a transaction which includes the sale of two or more parcels of land by way of separate contracts for each, so that none of the land contracts is conditional upon the performance of any of the others. (ii) By contrast, the parties to a composite transaction are not free to separate into a separate document expressly agreed terms, for example as to the sale of chattels or the provision of services, if upon the true construction of the whole of the agreement, performance of the land sale is conditional upon the chattel sale or service provision. That would, albeit for reasons which seem to me to frustrate rather than serve the purposes for which the 1989 Act was passed, fall foul of section 2(1), however purposively construed. So would a series of separate contracts for the sale of separate parcels of land, if each was conditional upon the performance of the other. (iii) Since the splitting into separate contracts of parts of a composite transaction is inherently likely to give rise to uncertainties as to whether performance of the one is conditional upon performance of the other, the parties are free, and in my opinion should be positively encouraged, to make plain by express terms whether or not that conditionality exists. To do so serves rather than evades or frustrates the purposes of section 2, an important part of which is to encourage clarity rather than uncertainty in land transactions.’

Longmore, Smith LJJ, Briggs J
[2010] EWCA Civ 277, [2010] 2 EGLR 161, [2010] 12 EG 97 (CS), [2010] BLR 579, [2010] 3 All ER 528, [2010] NPC 39, [2010] TCLR 4, [2010] 1 WLR 2715, [2010] 2 All ER (Comm) 494
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Citing:
Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Cited – Tootal Clothing Ltd v Guinea Properties Ltd CA 1992
By a single commercial transaction the parties agreed to the grant of a lease, on terms that Tootal (the intending lessee), would carry out shop-fitting works, have the benefit of a three months rent-free period during the which the works were to be . .
Cited – Grossman v Hooper CA 11-Apr-2001
The parties had lived together in the house, each contributing but held in the name of one only. The parties disputed the effect under the 1989 Act of a letter signed by each of them setting out their agreement as to the basis on which it was held. . .
Cited – Stickney v Keeble HL 1917
The purchaser had made repeated complaints about the seller’s delay in completing construction.
Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set . .
Cited – British Commonwealth Holdings plc v Quadrex Holdings Inc 1989
In considering the reasonableness of a time set in a notice to complete for construction works, the time it would actually take to complete the work is not the only consideration. . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Inntrepreneur Pub Co v East Crown Ltd 2000
The ‘entire agreement’ clause contained in a lease not only had the effect of rendering evidence of an alleged collateral warranty inadmissible, but also deprived the warranty of all legal effect. It did not collapse the lease in on itself. Lightman . .
Appeal from – North Eastern Properties Ltd v Coleman and Another ChD 20-Aug-2009
The parties agreed for the developer to build and the defendants to purchase several apartments. The properties were not completed after a notice to complete and the purchasers purported to rescind the contract. The claimant completed the flats and . .

Cited by:
Cited – Keay and Another v Morris Homes (West Midlands) Ltd CA 11-Jul-2012
The claimants sought damages alleging breach of contract. The defendants argued that the contract related to land, and since it was an oral agreement it was unenforceable under the 1989 Act.
Held: It was not possible for a contract which was . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 11 November 2021; Ref: scu.403471

Manning v Turner: 1957

Where the title shown by a seller of land is less than perfect, the question is whether the risk to the purchaser is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an action for specific performance at the instance of the vendors, force a title containing the alleged defect upon a reluctant purchaser?’

Sir Leonard Stone V-C
[1957] 1 WLR 91
England and Wales
Cited by:
Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 11 November 2021; Ref: scu.229218