Category: Land

Kumar v Dunning and Another: CA 15 Apr 1987

The court considered the effect of section 62 of the 1925 Act.
Sir Nicholas Browne-Wilkinson V-C said: ‘The main intention of Section 62 was to provide a form of statutory shorthand rendering it unnecessary to include such words expressly in every conveyance. It is a matter of debate whether, in the context of the section, the words ‘rights . . appertaining to the land’ include rights arising under a covenant as opposed to strict property rights. However, I will assume, without deciding, that rights under covenant are within the words of the section. Even on that assumption, it still has to be shown that the right ‘appertains to the land’. In my judgment, a right under covenant cannot appertain to the land unless the benefit is in some way annexed to the land. If the benefit of a covenant passes under Section 62 even if not annexed to the land, the whole modern law of restrictive covenants would have been established on an erroneous basis. Section 62 (1) replaces Section 6 (1) of the Conveyancing Act 1881. If the general words ‘rights . . appertaining to land’ operate to transfer the benefit of a negative restrictive covenant, whether or not such benefit was expressly assigned, it would make all the law developed since 1881 unnecessary. It is established that, in the absence of annexation to the land or the existence of a building scheme, the benefit of a restrictive covenant cannot pass except by way of express assignment. The law so established is inconsistent with the view that a covenant, the benefit of which is not annexed to the land, can pass under the general words in Section 62. Therefore, in my judgment, the Plaintiff cannot rely on Section 62 unless, at the least, he can show that the surety covenant touches and concerns the land so as to be capable of annexation, a point which I consider at (3) below.’
Sir Nicholas Browne-Wilkinson V-C, Croom-Johnson, Neill LJJ
[1987] EWCA Civ 1, [1989] 1 QB 193, (1987) 55 P and CR 64, [1987] 2 EGLR 39, [1987] 3 WLR 1167, (1987) 283 EG 59
Bailii
Law of Property Act 1925 62
England and Wales
Cited by:
Approved – P and A Swift Investments v Combined English Stores Group Plc HL 7-Jul-1988
The House was asked as to whether a covenant touched and concerned the land.
Held: Lord Oliver of Aylmerton said: ‘Formulations of definitive tests are always dangerous, but it seems to me that, without claiming to expound an exhaustive guide, . .
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 . .
Cited – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.245287

Polden v Bastard: QBD 13 Jun 1863

[1863] EngR 703, (1863) 4 B and S 258, (1863) 122 ER 456
Commonlii
England and Wales
Cited by:
Appeal from – Polden v Bastard CEC 28-Nov-1865
A testatrix, at the date of her will, was the owner of two adjoining houses and premises; she occupied one herself, in the yard belonging to which was a pump, the other house was and has been for some time occupied by T. A., as her tenant, and he, . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.283358

Moody v Cox and Hatt: CA 1917

An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of a will trust, and were selling as such. In addition Hatt acted as solicitor for the purchaser Moody. The contract price was pounds 8,400. Moody complained that Cox had failed to disclose to him a valuation showing the property to be worth less than the contract price, and that Cox had expressly asserted that the cottages were worth pounds 225 each when he knew that they were worth less. A ‘clean hands’ issue arose from the fact that Moody had paid two sums of pounds 100 to Cox as a sweetener. Since Hatt and Cox were selling as trustees, they had a duty to their beneficiaries to obtain the best price reasonably obtainable. It was argued that this modified the extent of Hatt’s duty, as a solicitor, to Moody as his client.
Held: The argument was decisively rejected. A fiduciary with two principals must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other.
Lord Cozens-Hardy MR said: ‘A man may have a duty on one side and an interest on another. A solicitor who puts himself in that position takes upon himself a grievous responsibility. A solicitor may have a duty on one side and a duty on the other, namely, a duty to his client as solicitor on the one side and a duty to his beneficiaries on the other; but if he chooses to put himself in that position it does not lie in his mouth to say to the client ‘I have not discharged that which the law says is my duty towards you, my client, because I owe a duty to the beneficiaries on the other side’. The answer is that if a solicitor involves himself in that dilemma it is his own fault. He ought before putting himself in that position to inform the client of his conflicting duties, and either obtain from that client an agreement that he should not perform his full duties of disclosure or say – which would be much better – ‘I cannot accept this business.’ I think it would be the worst thing to say that a solicitor can escape from the obligations, imposed upon him as solicitor, of disclosure if he can prove that it is not a case of duty on one side and of interest on the other, but a case of duty on both sides and therefore impossible to perform.’
Scrutton LJ referred to evidence given by the defendant solicitor, Mr Cox to the effect that he, Cox, knew that the price the client, Moody, was paying for the cottages was a good deal more than the value that had been placed on the cottages for probate purposes and that he, Cox, had not told the client the amount of the probate valuation.
He continued: ‘A man who says that admits in the plainest terms that he is not fulfilling the duty which lies upon him as a solicitor acting for a client. But it is said that he could not disclose that information consistently with his duty to his other clients, the cestius que trust. It may be that a solicitor who tries to act for both parties puts himself in such a position that he must be liable to one or the other, whatever he does. The case has been put of a solicitor acting for vendor and a purchaser who knows of a flaw in the title by reason of his acting for the vendor, and who, if he discloses that flaw in the title which he knows as acting for the vendor, may be liable to an action by his vendor, and who, if he does not disclose the flaw in the title, may be liable to an action by the purchaser for not doing his duty as solicitor for him. It will be his fault for mixing himself up with a transaction in which he has two entirely inconsistent interests, and solicitors who try to act for both vendors and purchasers must appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relation puts upon them.’
Lord Cozens-Hardy MR, Scrutton LJ, Warrington LJ
[1917] 2 Ch 71
England and Wales
Cited by:
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Distinguished – Hilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.222537

Edinburgh and Dalkeith Railway Company v Wauchope: HL 22 Mar 1842

The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The defendant sought payment for the carrying of passengers. The appellant said if he had any right to claim such, he had lost it after many years of allowing passengers to cross his land without charge.
Held: The respondent succeeded: ‘He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. ‘ and
‘There is little doubt that the provisions of the Act are ambiguous and inaccurate; but . . Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weigh of the carriage with the addition of the passengers. And if what has been stated at the bar is correct in fact, namely, that the directors of the company have actually paid him at the rate upon small parcels under five hundred weight, I must say that they have themselves put this very construction upon one part of the . . Act, and cannot be surprised that we have applied it to another.’
Irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. It was suggested that a private Act which affected a vested right could not be made applicable to a person who had had no notice served upon him of the introduction of the Bill. Lord Campbell said: ‘There is no foundation whatever for it. All that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through both Houses. I trust, therefore, that no such inquiry will again be entered upon in any Court in Scotland, but that due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions ‘.
Lord Brougham and Lord Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord Campbell based his opinion on more
general grounds. He said: ‘My Lords, I think it right to say a word or two before I sit down, upon the point that has been raised with regard to an act of Parliament being held inoperative by a court of justice because the forms, in respect of an act of Parliament, have not been complied with. There seems great reason to believe that notion has prevailed to a considerable extent in Scotland, for we have it here brought forward as a substantive ground upon which the act of the 4th and 5th William the Fourth could not apply: the language being, that the statute of the 4th and 5th William the Fourth being a private act, and no notice given to the pursuer of the intention to apply for an act of Parliament, and so on. It would appear that that defence was entered into, and the fact was examined into, and an inquiry, whether notice was given to him personally, or by advertisement in the newspapers, and the Lord Ordinary, in the note which he appends to his interlocutor, gives great weight to this. The Lord Ordinary says ‘ he is by no means satisfied that due parliamentary notice was given to the pursuer previous to the introduction of this last act.’ Undoubtedly no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he would be strongly inclined to hold in conformity with the principles of Donald, 27th November, 1832, that rights previously established could not be taken away by a private act, of which due notice was not given to the party meant to be injured.’ Therefore, my Lord Ordinary seems to have been most distinctly of opinion, that if this act did receive that construction, it would clearly take away the right to this tonnage from Mr. Wauchope, and would have had that effect if notice had been given to him before the bill was introduced into the House of Commons ; but that notice not having been given, it could have no such effect, and therefore the act is wholly inoperative.
I must express some surprise that such a notion should have prevailed. It seems to me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every act of Parliament, both private as well as public, upon the just construction which appears to arise upon it.’
Lord Cottenham, Lord Brougham, Lord Campbell
[1842] UKHL 710, 8 ER 279, [1842] EngR 405, (1842) 8 Cl and Fin 710, (1842) 8 ER 279, [1842] UKHL J12
Bailii, Commonlii, Bailii
Scotland
Cited by:
Approved – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.238718

Lancashire County Council v Buchanan: Admn 7 Nov 2007

The defendant estate agent was prosecuted for misdescribing the ability of his client to convey good title to the land offered. The seller did not initially have a registered possessory title to part of the land.
Held: The agent’s appeal succeeded: ‘In advertising a property for sale the estate agent is making no representation as to title. No reasonable person reading the particulars of the house and garden offered for sale could infer that any representation as to title was being made, still less as to the nature of the title. After all, these particulars, as is the almost invariable practice of such advertisements, were headed ‘subject to contract.’ A reasonable person would have appreciated that issues as to title would be dealt with during the process of conveyance.’
and ‘No reasonable person would have inferred any representation as to the nature or quality of the title to be conveyed. No reasonable person would have suspected that Mr Watson could not convey good title to the garden to the purchaser. The District Judge was correct in concluding that there were no reasonable grounds for suspicion and that accordingly the respondent was not guilty. I would dismiss this appeal.’
Moses LJ, Jackson J
[2007] EWHC 3194 (Admin)
Bailii
Property Misdescriptions Act 1991, Property Misdescriptions (Specified Matters) Order 1992
England and Wales
Citing:
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 30-Aug-2007
UK Advers Possession Law – Not Compliant
The claimant had said that the UK law which allowed it to lose land by virtue of twelve year’s occupation by a squatter, interfered with its right to ownership of property.
Held: The UK law on adverse possession did comply with the Convention. . .
Cited – Beaulane Properties Ltd v Palmer ChD 23-Mar-2005
The paper owner sought possession of land. The defendant said he had acquired a possessory title. The land was registered.
Held: The claimant’s human rights under article 1 were engaged. To be justifiable, the interference in that right had to . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.271177

Singh v Rainbow Court Townhouses Ltd: PC 19 Jul 2018

(Trinidad and Tobago)
Lord Reed, Lord Kerr, Lord Carnwath, Lord Hughes, Lady Black
[2018] UKPC 19
Bailii
England and Wales
Citing:
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Wilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 September 2021; Ref: scu.621122

Kinoo Sons Limited v Bibi Sarah Hossen Abdool and The Conservator of Mortgage: PC 11 Jun 2002

(Mauritius) – Plots of land had been inherited, and were now in the joint ownership of 20 people. Some sought a sale. A sale was ordered, and the resulting award challenged. The contract provided for a right of substitution for the purchasers of the objectors to the sale, but is was suggested that this was merely a referral to a statutory right which would not apply in this case.
Held: A right of substitution is no different from a right of pre-emption, and could be contractual in nature. The right of substitution formed part and parcel of the conditions of sale, notwithstanding that the basis of that right might be wrongly stated.
Appeal No 55 of 2001, [2002] UKPC 30
PC, Bailii, PC
Commonwealth

Updated: 22 September 2021; Ref: scu.172280

Keefe v Amor: CA 1965

The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 feet width of the strip, not merely a 4 feet 6 inch passage down it. Russell LJ suggested that the day after the grant the grantee might compel the demolition of the gateway so as to permit the exercise of the right granted in clear terms the day before. The language of a grant may be such that the topographical circumstances cannot properly be regarded as restricting the scope of the grant according to the language of it.
Russell LJ explained the position: ‘I would remark that it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required. (I am, of course, talking now about private rights of way.)’
Russell LJ
[1965] 1 QB 334
England and Wales
Cited by:
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
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 – 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 – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
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 – 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 – 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.
Updated: 21 September 2021; Ref: scu.254436

Benn v Hardinge: CA 13 Oct 1992

The court declined to find an intention on the part of the dominant land owner to abandon a right of way even though no use had been made of that right of way for one hundred and seventy five years because the dominant owner had other access to the particular land.
(1992) 66 P and CR 246, Times 13-Oct-1992
England and Wales
Citing:
Cited – Gotobed v Pridmore CA 1971
The court considered whether the long term non-user of an easement could amount to its abandonment.
Held: Buckley LJ said: ‘To establish abandonment of an easement the conduct of the dominant owner must, in our judgement have been such as to . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.252480

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 principle which must not be allowed to carry the court blindly. Obviously the question of the scope of the right of way expressed in a grant or reservation is prima facie a question of construction of the words used. If those words are susceptible of being cut down by some implication from surrounding circumstances, it being, to construe them properly, necessary to look at the surrounding circumstances, of course they would be cut down. Todrick’s case is a very good example of the sort of application of the rule which Farwell J was enunciating. Finding, as he did, a right of way reserved over a hereditament which was in such a physical condition that it was not capable of carrying such heavy traffic as omnibuses, he was unable to construe the grant in such a way that the grantee would be entitled to take over the road vehicles which were wider or heavier than the road could be asked to bear. There were two factors. The breadth of the omnibus, which would only allow 1 1/2′ margin at either side as it went through a certain arch, and the strength of the retaining wall and the effect on it of the passage of motor omnibuses and heavy vehicles over the part of the road held up by it made it clear that that kind of thing never could have been contemplated. The learned judge, I think, really came to his conclusion on this ground. He looked at the subject matter of the reservation, namely the piece of ground over which the easement was to exist, and, finding it in the condition which I have mentioned, he construed the right of way as limited in its user.’
Lord Greene MR
[1948] 2 All E R 791
England and Wales
Citing:
Approved – Todrick v Western National Omnibus Co Ltd ChD 1934
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 . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.254473

Cruise v Terrell: CA 1922

The plaintiffs stayed at weekends at a cottage let for a fixed term of one year. The contractual term ended on 25 March 1921 and was not renewed. On 7 April, in the absence of the plaintiffs, the defendant sent the local blacksmith to the cottage, who broke into the premises and put a new lock upon the door and locked it. The plaintiffs sued in trespass. The defendant pleaded by way of defence that the tenancy had determined by effluxion of time; in the alternative he counterclaimed for possession of the cottage on one of the statutory grounds. The trial Judge awarded damages for trespass, but made an order for possession on the counterclaim. The defendant appealed.
Held: the Court rejected the contention that the Act of 1920 had no application to a tenancy for a term certain. The Court then asked whether the effect of the Act was that the defendant’s forcible re-entry constituted a trespass.
Lord Sterndale, Master of the Rolls: ‘The next point is that assuming the Act does apply and that the plaintiffs are statutory tenants, the Act does not prevent a landlord from exercising a right of re-entry where he is entitled to an immediate order for possession under section 5 of the Act, which order it is contended when obtained relates back to the date of his entry. That point was, however, decided against the appellant in Remon v City of London Real Property Co. It is said that in the judgments in that case the point is dealt with by dicta only. In my opinion they are not dicta , but, even if they are, they are dicta from which we ought not to differ, and by which we are bound.’
Lord Justice Scrutton: ‘As to the second point it was said that the Act did not destroy the common law right of the landlord to enter. It will not help him to enter, but if he gets in peaceably he is in his right. It is that argument that as a member of the Court in Remon v City of London Real Property Co I listened to from Mr Romer and in my view we decided against it. It is true that in that case the landlord had not obtained an order for possession under s. 5 of the Act, as he did here, but in my view the object of the Act was to fetter landlords and to take away their common law rights, and until an order was obtained against him, a tenant stayed on, not as a trespasser, but as a statutory tenant – even against the will of the landlord. If the words of Bankes LJ and myself in Remon’s case which cover this point were obiter , they are now affirmed.’
Lord Justice Warrington: ‘The second point, that on the date when the defendant entered the plaintiffs were mere trespassers, has been disposed of by the decision in Remon v City of London Real Property Co. There the landlords went into possession without an order in the same way as the landlord did in this case and the action was brought for an injunction to restrain them, and it is clear that there would have been no right of action unless the tenant were a statutory tenant under section 15.’ After referring to Remon: ‘That decision is binding upon this Court, but even without it I would have taken the same view. It is quite clear that a person holding over is not to be treated as a trespasser.’
Lord Sterndale MR
[1922] 1 KB 664
Increase of Rent and Mortgage Interest (Restrictions) Act 1920 5
England and Wales
Citing:
Cited – Remon v City of London Real Property Co Ltd CA 1921
The court was asked whether the plaintiff, a tenant of rooms to which (once enacted) the Act of 1920 applied and who had been excluded from possession by the landlord’s re-entry on the day that the Act came into force following service of a notice . .

Cited by:
Cited – Lavender v Betts 1942
The landlord, served a notice to quit, and obtained entry to the property without force and removed the doors and windows so that it could no longer be used as a dwelling. The plaintiff brought an action for trespass.
Held: After referring to . .
Criticised – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.230371

Berkley v Poulett and others: CA 29 Oct 1976

Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was whether certain objets d’art were fixtures or chattels.
Held: None of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub-contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub-purchaser Y.
The court was asked whether some pictures, prints, a statue, and a sundial, each affixed to the land, had become fixtures or had remained chattels. If fixtures, they passed on the conveyance of the land; if chattels they did not.
Held: The modern answer to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation. Here, the paintings had been hung for their better enjoyment, and were not fixtures. Neither the statue nor the sundial were physically attached to the realty, and remained chattels.
Lord Justice Scarman said: ‘If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty. ‘
Stamp LJ said that the vendor ‘is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust.’
Stamp LJ, Scarman LJ, Goff LJ
[1976] EWCA Civ 1, [1977] 1 EGLR 86, (1977) 241 EG 911
Bailii
England and Wales
Citing:
Cited – Re Whaley 1908
Items affixed to a room may become fixtures if the purpose of its affixing be that ‘of creating a beautiful room as a whole.’ . .
Cited – Lord Chesterfield’s Settled Estates 1911
Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. . .

Cited by:
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.245273

Bank of Scotland v Grimes: CA 1986

The court considered the combined effect of both sections. Griffiths LJ said: ‘It is the intention of both sections to give a measure of relief to those people who find themselves in temporary financial difficulties, unable to meet their commitments under their mortgages and in danger of losing their homes.’
Griffiths LJ
[1986] 1 QB 1179
Administration of Justice Act 1970 36, Administration of Justice Act 1973 8
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.230375

Hemmings v The Stoke Poges Golf Club Limited: CA 1920

The defendant landlord had entered the demised property, in which the plaintiff and his wife were living, and removed them and their furniture, using no more force than was reasonably necessary to do so. The landlord had an immediate right to possession because the tenant’s right to live in the property depended upon his continuing to work for the landlord, which he no longer did.
Held: The plaintiff had no right of action against the defendant even if the actions of the landlord were a crime under 5 Ric 2, stat 1 c 7. No civil wrong is done by turning out a trespasser using no more force than is reasonably necessary.
[1920] 1 KB 720
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 – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.230373

In re Nisbett and Potts Contract: CA 1906

The purchaser had agreed to accept a possessory title less than the statutory minimum of 40 years.
Held: Even though he or she extinguishes the estate of the paper owner, a squatter takes subject to the incumbrances on the estate that are not barred by his or her adverse possession. He had constructive knowledge of all equitable interests he would have known of if he had insisted on a full title, and therefore he took subject to any restrictive covenants which would have been revealed by a full 40 year deduction of title. The appeal failed.
[1906] 1 Ch 386
England and Wales
Citing:
Appeal from – In re Nisbet and Potts’ Contract 1905
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.219185

Hampden Park Limited v Frank Dow and Stephen Conley and Hampden Cars Limited and Mount Florida Cars Limited: ScHC 3 Sep 2001

The case related to the disputed status of rights of way to the national football stadium in Scotland, over land adjoining the stadium. The stadium owners claimed that rights of way over the land had been used for more than twenty years. The land owners had purported to block the way by parking a car across it, and placing bollards to prevent access, and the stadium sought an interdict. Interdict is a preventive or prohibitory remedy, and must normally seek only a restrictive remedy. Nevertheless, positive obligations may be sought where they give effect to the substantial nature of the restriction to be enforced. Here the restrictive nature of the right of way, not to do anything to obstruct access, incorporated an obligation to remove obstructions placed across the highway.
Lord Drummond Young
[2001] ScotHC 99, [2001] ScotCS 216
Bailii, Bailii
Scotland
Citing:
Cited – Colquhoun’s Curator Bonis v Glen’s Trustee, 1920
A feu contract provided that a house should be used for residential purposes only. The tenant of the house used two rooms to conduct a school for young children, and the superior brought an action to interdict such use of the house.
Held: . .
Cited – Phestos Shipping Company Limited v Kurmiawan 1983
In the course of an industrial dispute between the crew of a vessel and its owners, the crew occupied the vessel and refused to move. The owners sought interdict and interim interdict against the crew from ‘continuing in occupation and possession . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.166514

Wilmott v Barber: ChD 19 Jun 1880

The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years from the date of the agreement. The lease contained a covenant by the lessee not to assign the property, or to part with the possession of it or any part of it, without the written consent of the lessor. The Plaintiff was not, in fact, aware of this covenant. He was let into possession of the one acre, and he laid out money upon it, and also upon adjoining property of his own with the view of occupying the two together. The lessor was aware of this expenditure. In October, 1877, the lessee, without the Plaintiff’s knowledge, surrendered the lease to the lessor, in exchange for a new lease for a longer term of the three acres together with other property* The new lease contained a similar covenant by the lessee not to assign, and so on, without license. In November, 1877, the Plaintiff gave the lessee notice of his desire to exercise his option to purchase his interest under the original lease in the three acres. The lessee declined to perform his agreement, on the ground that the lessor refused to give his license to an assignment. The Plaintiff brought the action against the lessee and the lessor, claiming specific performance of the agreement by the lessee, and to compel the lessor to give his license, on the ground, inter alia, that he had acquiesced in the Plaintiff’s expenditure knowing that he was acting in the mistaken belief that the lessee was able to assign the property to him. It appeared that the lessor was not, when the Plaintiff’s expenditure was incurred, aware of the existence of the lessee’s covenant not to assign without license :-
Held: The Court will not compel a Defendant specifically to perform an agreement when the result would be to compel him to commit a breach of a prior agreement with another person. The lessee could not be compelled to perform his agreement, inasmuch as his doing so would involve a breach of his prior covenant not to assign without license, for that, as the Plaintiff was seeking to treat the original lease as still subsisting for one purpose, he must treat the covenant not to assign contained in it as still subsisting :
Held: also, that inasmuch as the lessor was ignorant of his own rights, and there was nothing to shew that he knew that the Plaintiff had been acting in ignorance of his legal rights, the lessor could not be compelled to give his license to assign to the Plaintiff.
The circumstances under which the owner of a legal right will be precluded by his acquiescence from asserting it considered.
Mistake of fact is not the less a ground for relief because the person who has made the mistake had the means of knowledge.
Fry J set out the test of unconscionability: ‘A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description. In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.’
Fry J
(1880) 15 Ch D 96, [1880] UKLawRpCh 183
Commonlii
England and Wales
Cited by:
Cited – Budejovicky Budvar Narodni Podnik v Anheuser-Busch Inc CA 20-Oct-2009
The parties had long disputed the use of the trade marks ‘Bud’ and ‘Budweiser’ for their beers. The claimant now said that the defendants had made an abusive registration under the 1994 Act, by requesting a declaration that the registration by the . .
Cited – Singh v Rainbow Court Townhouses Ltd PC 19-Jul-2018
(Trinidad and Tobago) . .
Exlained – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.377526

Shaw v Applegate: CA 1977

There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay.
Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant.
Buckley LJ said: ‘The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.’ As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right – as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant – acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.’
Buckley LJ, Goff LJ
[1977] 1 WLR 970
England and Wales
Citing:
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Exlained – Wilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Cited by:
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Applied – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – Mills v Partridge, The Estate of and Another ChD 5-Aug-2020
Rights and obligations relating to three parcels of land . .
Cited – Argus Media Ltd v Halim QBD 7-Feb-2019
Challenge to validity of post employment restraint clause. . .
Cited – Singh v Rainbow Court Townhouses Ltd PC 19-Jul-2018
(Trinidad and Tobago) . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.250686

Glendonwyn v Gordon: HL 19 May 1873

By deed of entail A, in the event (which occurred) of his decease without heirs of his body, conveyed certain lands to his wife in liferent and to B in fee. The first condition of the entail was that B and the ‘whole heirs of entail and substitutes above written’ should assume a certain name. The fetters of the entail were directed only against ‘the heirs of entail or substitutes above written.’ B, after possessing the estate, died, leaving a deed whereby she conveyed to C certain lands nominatim, and also generally her whole heritable and moveable estate. In several previous deeds, which B granted in security of borrowed money, she styled herself heiress of entail in possession of the said lands, and as such bound by the fetters of the entail. Held-(1) that B had not intended by the deed in question to convey the said entailed lands to C, for the reason that she was not aware that she possessed them as absolute fiar. (2) that the fetters of the entail did not apply to B, the conditional institute, and that she possessed the said lands as absolute fiar.
Lord Chancellor Selborne, Lords Chelmsford and Colonsay
[1873] UKHL 451, 10 SLR 451
Bailii
Scotland

Updated: 20 September 2021; Ref: scu.652913

Wynne-Finch and Others v Natural Resources Body for Wales: ChD 27 Jul 2020

The claimants owned the land below surface in large areas owned or managed by the defendants used for forestry. The defendants were found to have in the past, extracted substantial volumes of stone for which the claimants now sought compensation.
Mrs Justice Falk
[2020] EWHC 1924 (Ch)
Bailii
England and Wales

Updated: 20 September 2021; Ref: scu.652794

Andrew Wauchope, Esq of Niddry v Earl of Abercorn, and Sir John Hope: HL 21 Feb 1780

Lease of Coal – Right of Property – Servitude – Opus Manufactum – Recompense.-
Circumstances where the level of a pit was communicated by the lessee to a neighbouring colliery, with proviso of the proprietor, that the level should not be communicated into any other neighbouring collieries, for the purpose of working the coal, to the prejudice of his original property; Held, on communication of the level to the neighbouring collieries, that the appellant was entitled to have it shut up; also held, in consequence of such communication, that the recompense due to him must be adequate to the benefit which has been enjoyed by the use of such level. There was a thick wall left in working the Niddry coal, which divided it from the coal of Woolmet, which stood higher up. The wall, consisting of porous coal, did not prevent the water from flowing down from the Woolmet pit to the Niddry coal. The proprietor of the latter was proceeding to make downsets to prevent this, when Sir Archibald Hope brought a suspension, contending that the Niddry coal, being the inferior
[1780] UKHL 2 – Paton – 519, (1780) 2 Paton 519
Bailii
Scotland

Updated: 20 September 2021; Ref: scu.561495

John, Duke of Roxburgh v James Don, Alias Wauchope, of Edmonstone, Esq: HL 5 Mar 1734

Tailzie – Circumstances under which a feucharter by an heir of entail was reduced as granted a non habente potestatem, although power to feu, without diminution of the rental, was given by the entail.
Prescription – Lands being possessed under a lease, and a feu of the same subsequently granted, it was found that the possession continued to be in virtue of the lease, and that prescription against the right of challenging the feu, commenced only at the expiry of the lease, and not from the date of the feucharter.
Jus Tertii – It being objected to the title of an heir pursuing a reduction of his ancestor’s deed, as a contravention of the entail, that the contravention implied the forfeiture of his own right,-the objection was repelled as being jus tertii to one who did not claim under the entail.
[1734] UKHL 1 – Paton – 126
Bailii
Scotland

Updated: 20 September 2021; Ref: scu.554566

Churchward v Studdy: 21 Jun 1811

The plaintiff’s dogs having hunted and caught, on the defendant’s land, a hare started on the land of another, the property is thereby vested in the plaintiff, who may maintain trespass against the defendant for afterwards taking away the hare. And so it would be though the hare, being quite spent, had been caught up by a labourer of the defendant for the benefit of the hunters.
[1811] EngR 384, (1811) 14 East 249, (1811) 104 ER 596
Commonlii
England and Wales

Updated: 17 September 2021; Ref: scu.339468

In re McHenry: CA 1894

The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the security on personal property (a scrip certificate of bonds) between the proceeds of the realisation and the amount of the advance. The issue was whether the limitation period ran from the date of realisation of the security, which was within the limitation period, or from the earlier date when the principal sum became repayable.
Held: The court rejected the contention that the time only began to run when the security was sold and the actual amount payable was ascertained and that there was a separate claim on the express promise to pay the difference. The cause of action arose when the original mortgage debt became due and that the promise to pay the difference did not create a new debt. Lord Herschell LC: ‘I cannot say that the right of realisation gave a new, separate and independent cause of action, so that the statute did not begin to run until from that date. The truth is that the debt is one debt only. The second clause of the document did not create a new debt, but only prescribed what should be done in the event of realisation and what should be made of the money realised. The words gave the creditor no right which would not equally have existed without them.’ Lindley LJ: ‘ The promise to pay the deficiency does not create a new obligation to pay: it only applies the old obligation to a reduced sum. The realisation of the security does not add to the cause of action; the cause of action accrued long before.’
.
Lord Herschell LC, Lindley LJ
(1894) 3 Ch 290
England and Wales
Cited by:
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183323

Hart v O’Connor, O’Connor O’Connor: PC 22 May 1985

(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable bargain, the Privy Council accepted the purchaser was innocent of any wrongdoing and had no means of knowing or cause to suspect the vendor was a lunatic, his solicitors having proffered the terms of sale.
In order to establish a lack of mental capacity, a party needs to show that:
(a) s/he was unable to understand the general nature of any agreement entered into; and
(b) the other party knew of her/his unsound mind at the time.
A contract made by a person who was ostensibly sane could not be set aside simply because it was unfair but only if there was equitable fraud which would also avail a sane person.
Lord Brightman
[1985] UKPC 17, (1985) 82 LSG 2658, [1985] 3 WLR 214, [1985] 2 All ER 880, [1985] 1 NZLR 159, [1985] AC 1000
Bailii
England and Wales
Citing:
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .

Cited by:
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.443667

Brand and Wife v Hammersmith, and co, Railway Company: QBD 27 Nov 1865

The owner of a house, none of whose lands have been taken for the purposes of the railway, cannot under the Lands Clauses Consolidation Act, 1845, or the Railway Clauses Consolidation Act, 1845, recover compensation in respect of injury to the house depreciating its value, caused by vibration, smoke, and noise, in running locomotives with trains in the ordinary manner, after the construction of the railway.
(1865-1866) LR 1 QB 130, [1865] UKLawRpKQB 31
Commonlii
England and Wales

Updated: 14 September 2021; Ref: scu.653042

Whitchurch v The Board of Works for the Fulham District: QBD 20 Jan 1866

A board of works, under the Metropolitan Management Acts, passed a resolution that a certain road should be repaired, and instructed the surveyor to estimate the cost and apportion it on the owners of property through which the road passed. The surveyor divided the road into four sections, and apportioned the cost of repairing each section amongst the owners of property in each section respectively. These apportionments were confirmed by resolutions of the board.
Held: that although the board might, under s. 105 of 18 and 19 Vict. c. 120, and ss. 77 and 112 of 25 and 26 Vict. c. 102, have resolved that part of the road should be repaired, yet, as they had resolved that the whole road should be repaired, there ought to have been but one apportionment on all the owners along the entire road ; and that the separate apportionments were invalid, and could not be enforced.
[1866] UKLawRpKQB 3, (1865-1866) LR 1 QB 233
Commonlii
England and Wales

Updated: 14 September 2021; Ref: scu.653046

Edinburgh Street Tramways Co v Black and Others: HL 8 Jul 1873

This was an appeal from a judgment of the First Division in an action of suspension and interdict, raised by Messrs Black and others, owners and occupiers in North Bridge Street, against the Edinburgh Tramways Company, and its object was to compel the Company to remove their rails at certain points ex adverso of the suspenders’ property, on the ground that the statutory distance of 9 feet 6 inches had not been left between the outer rails of the tramway and the curb-stone.
The First Division, adhering to the interlocutor of the Lord Ordinary (Gifford), gave judgment for the suspenders.
The Tramways Company appealed.
Where the provisions of a Special Act of Parliament conflicted with those of a General Act incorporated with it- Held (reversing the judgment of the Court of Session) that the latter must prevail, and that the deposited plans and sections had by reference been made part of the Special Act, to which it was too late to object.
[1873] UKHL 2 – Paterson – 206, [1873] UKHL 654, 10 SLR 654
Bailii, Bailii
Scotland

Updated: 14 September 2021; Ref: scu.652919

Briant v Baldacchino: UTLC 10 Jul 2020

Restrictive Covenants – Modification – redevelopment of the site of a former dwellinghouse destroyed by fire – multiple redevelopment proposals for one or two houses – whether a reasonable user – whether restriction secures practical benefits of substantial value or advantage – application refused – Law of Property Act 1925 grounds (a), (aa) and (c)
[2020] UKUT 206 (LC)
Bailii
England and Wales

Updated: 14 September 2021; Ref: scu.652538

Willingale v Global Grange Ltd: CA 13 Mar 2000

The tenants of a block of flats issued a notice wanting to purchase the freehold at a price. The landlord failed to serve the appropriate counter-notice, and the tenants applied to court. The landlord asked the court to exercise its discretion to award greater compensation. The court, and the appeal court declined. There was no discretion as to the terms of the sale in the absence of a counter-notice, despite the use of the word ‘may’ in the section: ‘may’ in section 47(1) meant ‘must’.
Waller LJ, May LJ
Gazette 23-Mar-2000, Times 29-Mar-2000, [2000] L and TR 549, [2000] 2 EGLR 55, (2000) 80 P and CR 448, (2001) 33 HLR 17, [2000] EWCA Civ 520, [2000] 18 EG 152
Bailii
Leasehold Reform Housing and Urban Development Act 1993 13
England and Wales
Cited by:
Cited – 9 Cornwall Crescent London Ltd v Kensington and Chelsea CA 22-Mar-2005
The tenants offered to purchase the landlord’s freehold for andpound;210. The landlord made a counter offer to sell the freehold at andpound;130,000. The tenants argued that just as their offer had to be realistic, so the landlord’s had to be . .
Cited – Majorstake Ltd v Curtis HL 6-Feb-2008
The tenant had served a notice under the 2003 Act to acquire a new lease. The landlord in replying that he wished to redevelop the site, sought himself to define the extent of the ‘estate’ to include only the tenant’s apartment and a neighbouring . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.90536

Walters v Webb: 1870

(1870) LR 5 Ch App 531
England and Wales
Cited by:
Distinguished – J A Pye and Another v Graham and Another ChD 14-Mar-2000
The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.258604

Vandeleur v Sloane: 1919

[1919] IR 116
England and Wales
Cited by:
Cited – J A Pye and Another v Graham and Another ChD 14-Mar-2000
The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.258605

Cedar Holdings Ltd v Green: CA 1981

A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee sought a declaration that by executing the charge, the husband charged his beneficial interest in the property under the statutory trusts for sale, arguing that section 63 of the 1925 Act – which states that every conveyance is effective to pass all the interest to be conveyed and which he has power to convey – had that effect. Alternatively, the plaintiff argued that where a vendor contracts to grant a greater interest than he is competent to grant, the purchaser can elect to affirm the contract and compel the guarantor to grant such lesser interest as he could grant.
Held: Under section 63 a beneficial interest in the proceeds of sale of land held upon the statutory trusts for sale is not an interest in land within the meaning of section 63. On the alternative argument the purchaser cannot demand a grant of some different subject matter in lieu of that contracted for.
The court found a further ground for defeating the plaintiff under Thomas v Dering and found that specific performance would prejudice the wife in two ways, one of which was that whether or not the court would ultimately order a sale under s.30 of the Law of Property Act 1925 such specific performance would be prejudicial to her position in proceedings under s.30.
Buckley LJ saw no judicial authority on the meaning and effect of the expression ‘interest in the property conveyed’ in Section 63, and said: ‘That section replaced Section 63 of the Conveyancing Act 1881 which was in identical terms. The purpose of that section was clearly to ensure that a conveyance should operate to convey all that the grantor could convey in relation to the subject matter, notwithstanding that the language of the conveyance might not be in every respect apt to produce that result, and to eliminate the need for an ‘all estate’ clause of the kind which conveyancers had previously been accustomed to include in conveyances.’
and: ‘In Section 63 we are concerned with the expression ‘interest in the property conveyed or expressed or intended so to be’. This, as it seems to me, focuses attention upon the particular subject matter conveyed or expressed or intended to be conveyed. If, as in the present case, that subject matter is land it would seem to me a strong thing to construe the word ‘interest’ in such a way as to make a conveyance effectual to pass property which is not land in any sense.
The device of the statutory trust for sale in respect of property vested in co-owners must have been very prominent in the minds of those who framed the 1925 property legislation. Had they intended the Law of Property Act 1925 Section 63 to have a different kind of operation from that which the Conveyancing Act 1881, Section 63, had been designed to achieve, I would certainly have expected some indication of this fact in Section 63. Instead, Section 63 of the Act of 1881 was left intact by the amending Act (The Law of Property Act 1922) and was consolidated without any change in its language into the Act of 1925. In my judgment, upon the true construction of Section 63 the beneficial interest in the proceeds of sale of land held upon the statutory trusts is not an interest in that land within the meaning of the section and a conveyance of that land is not effectual to pass a beneficial interest in the proceeds of sale.
It is not surprising that we have not been referred to any pre-1926 decision in which Section 63 of the Act of 1881 was held to operate in relation to an interest in the proceeds of sale of land held on trusts to sale.
The Plaintiffs say that it would be strange if the effect of Section 63, in conjunction with the 1925 reform of real property law, was that, whereas a conveyance executed on December 31st 1925, of the whole interest in land of which the sole grantor was one of two or more co-owners would be effectual to pass his undivided share of the property, a similar conveyance executed on January the 1st 1926, would not be effectual to pass that which on that date became substituted for his previous undivided share in the land, viz., his undivided share in the proceeds of sale. The second defendant, on the other hand, contends that the historic function of Section 63 and of its predecessor, Section 63 of the Conveyancing Act 1881, is and was connected with the normal operations of conveyancing and that the section is not, and never has been designed to deal with matters which have no relation to the title in the subject matter of a conveyance which the grantee acquires under the conveyance, and in particular with matters which since 1925 are for conveyancing purposes behind a curtain for a trust for sale.’
Goff LJ, Buckley LJ
[1981] Ch 129
Law of Property Act 1925 63
England and Wales
Citing:
Cited – Thomas v Dering 1837
The court put forward: ‘the general principle that the court will not execute a contract, the performance of which is unreasonable or will be prejudicial to persons interested in the property, but not parties to the contract’ . .

Cited by:
Overruled – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Cited – 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.
Updated: 12 September 2021; Ref: scu.238939

Church of England Buidling Society v Piskor: CA 1954

Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were binding on the building society whose money the purchaser had used to complete and in whose favour a charge (containing provisions against leasing by the chargor) was executed at the same time as completion of the purchase. Default having been made in payments due under the society’s charge, the society were not entitled to possession against the tenants in possession.
Held: The tenants succeeded. The various conveyancing steps must be treated as separate steps in the eye of the law. The court accepted the argument of the tenants that they had acquired their tenancies by estoppel which was ‘fed’ by the acquisition of the legal estate, thereby converting their tenancies into legal tenancies binding on the society. The court rejected the argument of the society that the conveyance and the charge were in reality one single transaction with the result that the purchaser’s legal estate was, from the outset, subject to the society’s charge and so could not be available to feed the estoppel free from it.
[1954] Ch 553
England and Wales
Citing:
Distinguished – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .

Cited by:
Overruled – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – Hardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
cook_mbpCA2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Mentioned – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.261364

South Lanarkshire Council v The Lord Advocate As Representing the Scottish Ministers and others: IHCS 30 Aug 2001

Following a planning permission the applicant’s land became subject to compulsory purchase, and they were entitled to a certificate of appropriate alternative development. An application was made, but much later, and then granted on appeal. The respondents appealed against the certificate as regards one use.
Held: The grant may have been more favourable to the applicant than might have been the case if the decision had been made properly, but it was too late to resile on the decision.
Lord President, Lord Prosser, Lady Cosgrove
[2001] ScotHC 95, [2001] ScotCS 213
Bailii, Bailii
Land Compensation (Scotland) Act 1963 (c. 51) 29
Scotland
Citing:
Cited – Grampian Regional Council v Secretary of State for Scotland HL 1983
The House endorsed the practice of imposing negative conditions in planning consents, upholding the validity of a condition that the development of the site could not commence until the road on the western boundary of the site had been closed by a . .
Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.166260

Sir Henry Edward Bunbury, Bart v Philip Fuller: 25 Jun 1853

A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, therefore, no jurisdiction over such lands. In a question of jurisdictional or precedent fact the ultimate arbiters are the courts rather than any public authorities involved. A tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe.
Coleridge J said: ‘Now it is a general rule, that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior court.’
The learned judge instanced the case of a judge having a jurisdiction limited to a particular hundred before whom a matter was brought as having arisen within it: if the party charged contended that it arose in another hundred, then there would be a collateral matter which was independent of the merits of the claim: ‘on its being presented, the judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.’
Coleridge J
[1853] EngR 768, (1853) 9 Exch 111, (1853) 156 ER 47
Commonlii
England and Wales
Cited by:
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.294754

Thomas v Jenkins: 21 Apr 1837

On a question of boundary between two estates, if evidence has been given that the boundary of the estates is the same as that between two hamlets, evidence of reputation as to the boundary of the hamlets may he adduced for the purpose of proving that of the estates ; and the jury may be desired to take into consideration the latter evidence if they are satisfied with the first.
[1837] EngR 649, (1837) 6 Ad and E 525, (1837) 112 ER 201
Commonlii
England and Wales

Updated: 05 September 2021; Ref: scu.313766

Wallington v Townsend: ChD 1939

The parties exchanged contracts for the sale and purchase of land, but the contract had attached an incorrect plan, including a strip of land now disputed. Neither party had properly attended to what they were signing. The plaintiff buyer maintained her desire to acquire some part of the disputed land. The vendor defendant refused to complete seeking by counterclaim rectification. The wording of the conveyance to the vendor which fell to be construed contained this formula, ‘as the same is more particularly delineated on the plan annexed hereto and thereon coloured pink’.
Held: Rectification was refused, and the deposit was to be returned with some damages.
Morton J stated that the view which he felt compelled to adopt was one which he would not adopt unless the words were so strong that he felt himself judicially incapable of resisting their proper inference, and he thought that those words were too strong: ‘I find myself unable to come to any conclusion other than that, on the true construction of the contract, the disputed strip is included in the land which is sold’.
Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
Morton J said: ‘The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law’.
Morton J
[1939] Ch 588, [1939] 2 All ER 255, (1939) 108 LJ Ch 305, (1939) 160 LT 537, (1939) 55 TLR 531, (1939) 83 Sol Jo 297
England and Wales
Cited by:
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – Hopgood v Brown CA 3-Feb-1955
Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.421539

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 rely to their detriment on the paper title. The judge had found him estopped from asserting ownership inconsistent with that behaviour and the conclusion was well founded and unappealable.
[2008] EWCA Civ 1442
Bailii
England and Wales
Citing:
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Cited – Armstrong v Sheppard and Short Ltd CA 1959
The plaintiff had a path at the rear of his property. The defendant constructed a sewer under the path, and asked the plaintiff for permission. He gave it informally, not knowing at the time that he owned the land. The sewer was constructed. Though . .
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Habib Bank Ltd v Habib Bank AG Zurich CA 1981
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.278822

John, Duke of Roxburgh v Christian Kerr of Chatto, and Charles Kerr, Esq Her Husband, and Captain William Elliot of Wells: HL 18 Mar 1735

Tailzie – An estate was held under a strict entail against contracting debt, or doing any deed whereby it might be evicted, but with power to the heirs to burden it with the entailer’s debts. In security of some of these debts, proper wadsets were granted over a part of it, and the heir afterwards executed a bond of eik in favour of the creditor upon his becoming bound to relieve him of certain other of the debts. It was found that the bond was not ultra vires of the heir, and that a decree of apprising proceeding upon it, by which the lands had been carried off, was not struck at by the entail.
[1735] UKHL 1 – Paton – 156, (1735) 1 Paton 156
Bailii
Scotland

Updated: 01 September 2021; Ref: scu.554576

John Walkinshaw v His Majesty’s Advocate, Et Alii: HL 9 Jun 1737

Falsa Demonstratio – Found that an attainder was not vitiated, although in the act the person was described by the name of Wakinshaw, instead of Walkinshaw, and as being ‘of Scotstoun,’ (the estate of his father,) although, at the time, he was not infeft in any lands
[1737] UKHL 1 – Paton – 197, (1737) 1 Paton 197
Bailii
Scotland

Updated: 01 September 2021; Ref: scu.554682

Bradford and Bingley Plc v Rashid: CA 22 Jul 2005

The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The defendant said they were written without prejudice and were inadmissible. The lender appealed.
Held: The lender’s appeal failed. The letters in issue though not marked without prejudice were in fact so, and the judge’s decision was correct. Each such case must be heard on its particular facts.
[2005] EWCA Civ 1080
Bailii
Limitation Act 1980 20(1)
England and Wales
Citing:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .

Cited by:
Appeal from – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.229726

Wills’ Trustees v Cairngorm Canoeing and Sailing School Ltd: HL 3 Mar 1976

The pursuers claimed ownership of a riverbed (the Spey) and of associated rights, and objected to the use made of it by the defenders in holding canoeing courses on the river. They said that the use interfered with salmon fishing activities. The defenders asserted a public right of navigatin.
[1976] UKHL 8, [1976] 3 WLR 725, 1976 SC (HL) 30, [1976] 3 All ER 611, (1976) 140 JP 661, 1976 SLT 162, [1977] AC 359
Bailii
Scotland

Updated: 25 August 2021; Ref: scu.279740

Bishop of Worcester v One of His Copyholders: 1660

The copyholder preferred his bill to be relieved against a forfeiture for cutting timber. Per Cur’, if the waste be voluntary the court will not relieve; and an issue at law was directed, whether he cut the trees with an intent to do waste, and the Lord Keeper being pressed to alter this issue would not alter it.
[1660] EngR 67, (1660-1706) 2 Freem Chy 137, (1660) 22 ER 1112 (D)
Commonlii
England and Wales

Updated: 25 August 2021; Ref: scu.410057

Lidl UK Gmbh and Another v Davies and others: CA 10 Jul 2008

The claimants had sold land to Lidl. The parties now disputed the interpretation of the development contract.
Held: Permission was given to amend the claim to assert a claim under trusts as between a party to the head contract and a party to the sub-sale contract.
Sir Mark Potter P, Tuckey LJ, Lawrebce Collins LJ
[2008] EWCA Civ 976
Bailii
England and Wales
Cited by:
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.272855

Jolliffe v Exeter Corporation: CA 1967

Mr Joliffe owned a garage on a busy road. Adjoining land was involved in a widening scheme, the result of which was to leave his garage at the end of a cul de sac, though no land was taken from him.
Held: Section 10 gave him no right to compensation. Where the execution of the works is facilitated by a stopping-up order made by a different compensating authority, under a different statutory scheme not incorporating the 1965 Act, the stopping up does not give rise to a claim under section 10.
Davies LJ noted that the stopping up of the street was done by the Minister under the Town and Country Planning Act, which made no provision for compensation.
Russell LJ said that: ‘the execution of the works authorised, that is to say, the construction of the highway’ had no injurious effect on the plaintiff’s property and ‘The damage was already done. Coombe Street, before a pick or spade had been laid on the works, had been turned into a cul-de-sac so far as the plaintiff was concerned.’
Lord Denning said od a stopping up order that it: ‘authorised the stopping up of various streets in Exeter, including this part of Coombe Street. But it is important to observe that the Act of 1947 contains no provision for compensation. In this respect the Act is like the old Highways Act, 1835. The legislature provided for local inquiries and confirmation by quarter sessions, but no provisions for compensation. Under that Act the stopping up might ruin a man’s trade, but he could recover no compensation. So here, the stopping up of Coombe Street may damage Mr Joliffe’s trade in that street, but he can recover no compensation on that account.’
Lord Denning, Davies LJ, Russell LJ
[1967] 1 WLR 993
England and Wales
Cited by:
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.259679

Chambers v Randell: 1923

Where there is no express annexation of the benefit of a covenant the Court will usually regard the covenant as imposed simply to protect the covenantee while he or she holds the land, or to enable the covenantee to dispose of the land, together with an express assignment of the benefit of the covenant, more advantageously. Sargant J said that the principle: ‘is that the equitable doctrine enabling restrictive covenants to be enforced against assigns with notice ought not to be extended in derogation of the ordinary rights at common law of purchasers, and that it ought to be applied only where it is sought to enforce the covenant in connection with the enjoyment of land that the covenant was intended to protect.’
Sargant J
[1923] 1 Ch 149
Conveyancing Act 1881
England and Wales
Cited by:
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.220705

John, James, George, and Anne Hepburn, and Their Tutor Ad Litem v Charles Congalton, and Others: HL 6 Dec 1758

Entail – Resolutive Clause –
Imperfect resolutive clause appearing in an entail: Held, the entail not good against debts contracted in contravention of the prohibitions. But that the next heir-substitute succeeding to the contravener had good action against him and his representatives to purge the estate of such debts.
[1758] UKHL 2 – Paton – 17
Bailii
Scotland

Updated: 23 August 2021; Ref: scu.558251

The Right Honourable Lord Gray and Lady Gray v Magistrates and Town Council of Perth: HL 30 Mar 1757

Salmon – Fishing – Grant – Drawing Nets On Bank. –
A prior grant to a party of the salmon-fishing in and round an island on a river, without any limitation as to drawing the nets, does not prevent the Crown from making a posterior grant to another party whose lands are opposite to the island; and where the channel is so narrow as not to permit both
[1757] UKHL 1 – Paton – 645
Bailii
Scotland

Updated: 23 August 2021; Ref: scu.558241

John Coltart of Areeming, Esq v Winifred Maxwell of Nithsdale, and William Haggerston Maxwell Constable, Esq Her Husband; John Maxwell of Terrachty, Esq and Others, Et E Contra: HL 29 Jan 1779

Vassals holding church lands of the Abbot as superior, before the Reformation, had obtained a charter after that event from the Crown, providing that the lands were to be held of the King as superior thereof: Held that this charter, followed by prescription, did not entitle these lands to be holden always of the Crown, or prevent a grant by the Crown of such superiority to a third party in commendam; the Crown being entitled so to convey the superiority.
[1779] UKHL 2 – Paton – 482
Bailii
Scotland

Updated: 23 August 2021; Ref: scu.562030

John Earl of Breadalbane, Sir James Sinclair of Dunbeath, and John Sinclair of Ulbster, Esq; v Alexander Earl of Caithness: HL 20 Mar 1724

Reduction Improbation – In an action, where various objections were made to the pursuer’s title, the Court having ordered production to be made, and afterwards granted certification; the judgment is reversed, and it is ordered that the defenders be not obliged to take a term for production, until the pursuer make out his title, upon which he founds his suit.
[1724] UKHL Robertson – 459, (1724) Robertson 459
Bailii
Scotland

Updated: 23 August 2021; Ref: scu.553902

Dawson v Dawson: 22 Feb 1837

Testator devised a house to trustees, upon trust to permit his son, at any time within three months after his death, to become the purchaser thereof, at the price of 4000 pounds; and to sell and convey the same to his son, his heirs, and co. But should his son not complete such purchase within the three months, then the trustees were, within 12 months from the testators death, to sell the house by auction. The son, within two months from his father’s death, declared to the trustees his intention to purchase the house at the sum mentioned, but they did not deliver the title deeds to their solicitor, or instruct him to prepare the conveyance until the last day of the three months ; and the son did not pay any part of the purchase money, nor was any conveyance executed to him within the three months. Held, that he could not enforce his option.
[1837] EngR 530, (1837) 8 Sim 346, (1837) 59 ER 137 (B), [1837] EngR 531, (1837) Donn Eq 212, (1837) 47 ER 327
Commonlii, Commonlii
England and Wales

Updated: 20 August 2021; Ref: scu.313647

Fielden v Cox: 1906

The defendants had set up appliances on the highway for the purpose of catching moths.
Held: The court discouraged actions for minimal obstructions.
(1906) 22 TLR 411
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.192202

Honey v Sliversprings Bleaching and Dyeing Co Ltd: ChD 1992

[1992] Ch 268
England and Wales
Cited by:
Cited – Green v The Right Honourable Lord Somerleyton and others CA 28-Feb-2003
green_somerleyton
The parties owned areas of marshland divided by a road. The claimant sought a declaration that the defendants had no right to allow floodwater to escape over his land from what he said was an artificial reservoir on the defendant’s land. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179682

Central Midlands Estates Ltd v Leicester Dyers Ltd: ChD 21 Jan 2003

The claimant sought a declaration that the caution registered by the defendant should be vacated. The defendant asserted acquisition by prescription either of an easement or of the land itself. They had parked vehicles on the land.
Held: Whilst it was possible to acquire an easement of parking over land, this was not possible where the extent claimed was such as to extinguish the servient owner’s enjoyment of his land, and to render his occupation illusory. Nor had the defendant acquired title by adverse possession, and nor had the land become a public right of way.
Engelhart QC J added a further ground for rejecting a claim in prescription: ‘I am unable to accept that such parking as there was, whether by Leicester Dyers employees or delivery men when making deliveries, can properly be categorised as user as of right by Leicester Dyers itself. It must be remembered that, where an easement exists, it can only do so for the benefit of the dominant tenement. The personal convenience of individual employees or delivery men is not enough.’
Engelhart QC J
Times 18-Feb-2003, Gazette 20-Mar-2003, [2003] All ER (D) 141
Highways Act 1980 31
England and Wales
Cited by:
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179314

Hayward v Jackson: ChD 18 Feb 2003

The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the will if the option lapsed, and no other detriment was suffered by the delay. The delay had been caused by the Capital Taxes Office’s failure to agree a value for the land. Time should not be taken to be of the essence, and the option remained exercisable. There was no distinction to be made here in interpreting wills between a gift and an option.
Mr Justice Lawrence Collins
Times 27-Feb-2003, [2003] EWHC 253 (Ch), Gazette 03-Apr-2003, , [2003] Ch 422
Bailii
England and Wales
Citing:
Cited – Lord Lilford v Powys Keck (No 1) 1862
. .
Cited – Talbot v Talbot ChD 1968
A testamentary option was given relating to two farms which provided for the price to be the ‘reasonable valuation’ of the farms.
Held: This option was enforceable and the court ordered an enquiry as to what was a reasonable price for the . .
Cited – Taylor v Popham 1782
PT, in his lifetime granted two annuities to his son and there being subsisting accounts between them by his will he gave him an annuity of andpound;600 on condition that he should within three months execute a release of all demands on his estate. . .
Cited – In re Parkard 1920
. .
Cited – In re Goodwin; Ainslie v Goodwin ChD 1924
Request on condition – Annuity to Wife if smaller annuity under deed released within six months of testator’s death – estate encumbered – neither annuity paid to widow during her life – Death of widow without exercising realease – release by her . .
Cited – In re Goldsmith 1947
The testator had directed his trustees to hold his freehold house upon trust, after the death of his wife, for a Mr Bingham, but subject to the payment of andpound;800 by him to his trustees within six months of his death to form part of his . .
Cited – Powell v Rawle 1874
A legacy was given to the testator’s daughter on the ‘express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the . .
Cited – Brooke v Garrod 1857
The testator directed his trustees to offer all his real estate to his brother at the price of pounds 2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, . .
Wrongly decided – In re Avard (dec’d) 1948
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179584

Bayoumi v Women’s Total Abstinence Union Ltd and Another: ChD 21 Jan 2003

The claimant sought specific performance of a contract to purchase land from the defendant charity. The defendant had not complied with its obligations under the Act. The cliamant sought to say at the transaction came within s36(3) (that it was ‘sold’) and that he had acted in good faith.
Held: The Act allowed a disposition of charity land in breach of the Act’s requirements, but used different terms in different sections. S37(4) which might otherwise have saved the contract referred to land which had been ‘sold leased or otherwise of by a disposition’ and was intended only to apply to a completed transaction or effected disposition. The transaction here was as yet executory, and specific performance could not be granted.
Simon Berry QC
Times 04-Feb-2003, Gazette 13-Mar-2003, [2003] Ch 283, [2003] EWHC 212, [2003] 2 WLR 1287, [2003] 1 All ER 864, [2003] WTLR 317, (2003) 100(10) LSG 27, [2003] 1 P and CR DG21
Charities Act 1993 36(1) 36(5) 37(4)
England and Wales
Citing:
Cited – Milner v Staffordshire Congregational Union (Inc) ChD 1956
The plaintiff had contracted to buy land from a charity. The consent of the Charity Commissioners had not been obtained, but the contract was not conditional on such consent. When the charity trustess realised that consent was required they told the . .
Cited – Miles v Bull 1969
The husband and wife separated and the husband sold the property in which the wife was living. He then brought an action for possession of the property against her and now sought summary judgment.
Held: Megarry J said: ‘the defendant can . .

Cited by:
Appeal from – Bayoumi v Women’s Total Abstinence Union Ltd and Another CA 5-Nov-2003
A charity entered into a contract for the sale of land. It failed to comply with the requirements under the Act. The purchaser assigned the benefit of the contract, to the claimant who sought to enforce the contract.
Held: The section only . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.178853

Capital Investments Ltd v Wednesfield Urban District Council: ChD 12 Feb 1964

The council set out to acquire two plots of land for development for housing. After the process had begun, it was decided that some of the land should be uised for educational purposes. A Land Charge had been served but the matter not completed. A subsequent owner of the land contested that the land should be released since it was no longer required for the original purpose, and sought a declaration that the notice to treat was void.
Held: Applying Simpson Motors, the use for other purposes was liable to be ultra vires, but that did not make the notice to treat void. It was wrong to treat the order for this land in isolation from the intentions for the entire development, and in that context, the use for educational purposes was ancillary. The normal pattern for compulsory purchase will be for the authority to enter following notice to treat and notice of entry, and for compensation to be agreed or determined by the Lands Tribunal, following which there is the equivalent of a contract for the sale of the land which can be specifically enforced.
Wilberforce J, as to the proposition that a notice to treat constitutes, under s10 of the 1925 Act, a contract: ‘In my judgment, however, that is clearly not so. First of all, there is the matter of principle. There is, by the mere service of a notice to treat, no consensus between the parties, because at this point the price has not been fixed. A notice to treat does nothing more than establish conditions in which a contract might come into existence, either a voluntary contract or a statutory contract. As a matter of authority, it seems to me that the position is clearly established in Haynes v Haynes and also stated by Fry on Specific Performance, 6th ed., p.62, both of which, to my mind, make it plain that a contract does not come into existence by the mere service of a notice to treat before the compensation has been determined. It has been said that for certain purposes and to a certain extent the notice to treat constitutes the relation of vendor and purchaser, but in the same passages in which this statement has been made it has also been made clear that the notice does not constitute a contract but only a preliminary step bringing the parties together either to agree or to refer the matter to a jury or other tribunal. I refer to Adams v London and Blackwall Railway Co., per Lord Cottenham and also to Haynes v Haynes.’
Wilberforce J
[1965] Ch 774, (1964) 108 SJ 377, [1964] 2 WLR 932, [1964] 1 All ER 655, (1964) 128 JP 287, (1964) 62 LGR 566, (1964) 15 P and CR 435
Compulsory Purchase Act 1965 9, Housing Act 1957 91 93 96 97 105, Housing Act 1937, Housing Act 1936 74, Land Charges Act 1925 10 813
England and Wales
Citing:
Cited – Adams v London and Blackwall Railway Co 1850
. .
Cited – Simpsons Motor Sales (London) Ltd v Hendon Corporation (No 1) CA 1962
The use of land purchased under compulsory powers for a different purpose was ultra vires, but did not undermine the original notice to treat. There was no reason not to use a compendious description of the range of purposes for which land was to be . .
Cited – Rolls v London School Board ChD 1884
. .
Cited – HE Green and Sons v Minister of Health (No 2) 1947
The plaintiff challenged a compulsory purchase order, saying that the purpose of the order went beyond the statutory purpose.
Held: The provision of ‘houses’ must be taken to include the provision of ancillary facilities. Denning J said that . .

Cited by:
Cited – BP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
Cited – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2021; Ref: scu.183503

Sunnassee v Ardill: PC 21 May 2001

(Mauritius) The appeal concerned an option to purchase land. The parties differed as to the identity of the land covered, and as to the service of the notice exercising the option. Certain factual elements had not been resolved in the lower courts, and while reasserting their reluctance to investigate matters of fact, the court agreed to look at some factual issues. After many years the claimant was unable to produce evidence of the service of a particular notice, only a copy of the letter sent. An apparent mistake by the parties in referring to a plan which did not accord with the expectations of either of them would not vitiate the contractual option. Each party thought the plan referred to was in a certain form.
[2001] UKPC 25, Appeal No 50 of 1999
Bailii, PC, PC
England and Wales

Updated: 18 August 2021; Ref: scu.163292

Valbonne Estates Ltd v Cityvalue Estates Ltd and Another: CA 30 Jun 2021

This appeal concerns the proper exercise of the court’s discretion to continue a pre-action interim injunction or to re-grant it, notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis.
Lady Justice Asplin
[2021] EWCA Civ 973
Bailii, Judiciary
England and Wales

Updated: 16 August 2021; Ref: scu.663473

Morris v Jones and others: CA 6 Dec 2002

Lord Justice Clarke, Lord Justice Ward, Sir Anthony Evans
[2002] EWCA Civ 1790, [2002] All ER (D) 82, [2001] EMLR 800
Bailii
Defective Premises Act 1972
England and Wales
Citing:
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.178459