Category: Land

Manjang v Drammeh: PC 1990

The owner of a strip of land alongside the River Gambia and which was ‘regularly and without inconvenience’ accessed by his customers from the river failed in a contention that his land was ‘landlocked’ so as to give him a way of necessity over adjoining land to the public highway.
Held: Lord Oliver explained the principle underlying the grant of a right of way of necessity by implication: ‘It seems hardly necessary to state the essentials for the implication of such an easement. There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough) to imply the reservation of an easement of necessity.’
Lord Oliver
[1990] 61 P and CR 194
Commonwealth
Citing:
Cited – Nickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .

Cited by:
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2021; Ref: scu.253283

Salvesen v Riddell and Another: SCS 15 Mar 2012

Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 was enacted as an anti-avoidance measure. But on that basis that it was inappropriate because of its excessive effect and its arbitrary scope. The Lord Justice Clerk said that it was excessive because, if the landlord should fail to obtain an order of the Land Court under section 72(9), the general partner is given a 1991 Act tenancy of the holding, with all the adverse consequences to the landlord that this involves, and the landlord is also exposed to the tenant’s contingent right to buy.
Lord Justice Clerk Gill, Lord Osborne and Lord Nimmo Smith
[2012] ScotCS CSIH – 26, 2012 Hous LR 30, 2012 GWD 12-234, 2013 SC 69, 2012 SCLR 403, 2012 SLT 633
Bailii
Agricultural Holdings (Scotland) Act 2003 88(1), European Convention on Human Rights 1
Scotland
Citing:
At Scottish Land Court – Salvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .

Cited by:
At Court of Session – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
At SCS – Salvesen v Riddell and Another SCS 6-Jan-2015
The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute. . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.452231

Wandsworth Board of Works v United Telephone Co: CA 1884

A land-owner had the right to cut a wire wrongfully placed over his property.
(1884) 13 QBD 904
England and Wales
Cited by:
Cited – Bernstein of Leigh (Baron) v Skyview and General Ltd (Summary) QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.268224

Andrews v Waite: 1907

Neville J concluded that, even quite substantial alterations in the fenestration during the prescription period were not of themselves material; what mattered was that the light enjoyed should be the same light as that which was enjoyed throughout the 20 year period.
Neville J
[1907] 2 Ch 500
England and Wales
Cited by:
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
cgis_britelChD2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.463814

Forbes v Trefusis: HL 17 Jun 1873

The appellant having sued by a mandatory, as being absent from the United Kingdom; Held that the fact of his mandatory’s presence and action for him did not exclude his right to appeal any time within 5 years under ss 25 of the statute.
A deed of strict entail contained a destination to A, and the heirs-male of the marriage between A and the entailer’s daughter, and the heirs-male of their bodies respectively; whom failing, to the heirs-female of the marriage, and co. Held (sustaining judgment of the First Division of Court of Session) that on the succession opening by the death of the eldest son of the marriage without male issue, his only daughter, as heir whatsoever of his body, was entitled to take in preference to the next heir-male of the marriage.
[1873] UKHL 481, 10 SLR 481
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652916

Henderson and Dimmack (Mineral Tenants) and Colonel Buchanan (Mineral Owner) v Andrew (Feuar of Building Ground): HL 10 Mar 1873

This was an appeal from a decision of the Second Division. Mr Andrew was the owner of a house in Coatbridge, which he had bought in 1865 from one Porteous, who had built it. The feucontract between Porteous and Mr Buchanan, the superior, contained an obligation on the feuar to build a house of a certain size and style on the piece of ground feued, and the superior expressly reserved to himself power to work the minerals under the feu. The words in the contract were,’ Reserving always to the said superior the whole coal, and co., with full power to work, win, and away carry the same at pleasure. And it is expressly agreed that the said superior shall not be liable for any damage that may happen to the said piece of ground or buildings thereon, by or through the working of the coal in or under the same, or in the neighbourhood thereof, by long wall ‘working or otherwise.’ The lessees of the Drumpelier coalfields were working the mine near the feu of Mr Andrew, and there was a well-founded apprehension that the house would shortly be destroyed by the subsidence that would follow when all the coal was worked out, as the lessees were in course of doing. Mr Andrew accordingly applied for an interdict, which he obtained, three of the Judges construing the feucontract so as to protect him against the working of the coal within 100 yards of his house, while the Lord Justice-Clerk dissented, holding that the feuar had taken the risk of subsidence on himself.
[1873] UKHL 320, 10 SLR 320
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652908

ARC Aggregates Ltd v Branston Properties Ltd: ChD 22 Jul 2020

‘The short question raised by these applications for summary judgment is whether the claimant, ARC Aggregates Ltd (‘ARC’) retains a corporeal right to mines, minerals and mineral substances (the ‘mines and minerals’) lying beneath the surface of property owned by the defendant, Branston Properties Ltd (‘Branston’), or whether it retains merely an incorporeal right to the mines and minerals.’
Mr Justice Zacaroli
[2020] EWHC 1976 (Ch)
Bailii
England and Wales

Updated: 11 August 2021; Ref: scu.652755

James Mackintosh, Esq v Miss Emily Maria Mackintosh and Others: HL 19 Mar 1873

M. in 1857 made a deed of entail, and bound himself and his heirs and executors to free and relieve his lands (the entailed estate) of all his debts and obligations. In 1867 he executed an antenuptial contract of marriage, providing annuities to his third wife, and in security bound himself to infeft her in the entailed estate, which was done, and the deed reserved an option to him and his heirs to get rid of the burden by purchasing like annuities from an insurance office. M. having died:
Held (reversing judgment), That the heir of entail was to be relieved of the, these being debts and obligations within the meaning of the clause.
[1873] UKHL 2 – Paterson – 204
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652909

D C R C Buchanan, Esq, Robert Henderson, Coalmaster, Coatbridge, and Others v William Jackson Andrew, Solicitor, Coatbridge: HL 10 Mar 1873

B., the owner in fee of land, by feu contract sold part thereof to P. for building purposes, P. obliging himself to build and maintain a house thereon of a certain style, and B. reserving to himself all the coal and minerals under the ground feued, with power to win and remove the same, and not to be liable for any damage that may happen to the said ground, or buildings thereon, by the working of the minerals. At the date of the feu contract both parties knew that there was coal below the ground. P. built his house, and afterwards the whole coal was about to be worked and carried away, leaving no support.
Held (reversing judgment), That B. was entitled to work and carry off all the coal, though the building of P. might thereby be destroyed, P. having taken all such risk on himself.
Semble, If P.’s house were to be destroyed by B.’s working of the mines, P. would not be bound to rebuild
[1873] UKHL 2 – Paterson – 203
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652907

Sutcliff and Another: LT 10 Oct 2006

RESTRICTIVE COVENANT – discharge – modification – absolute covenant against development – regulatory covenants – whether the former obsolete – change in character of property – whether practical benefits secured – substantiality – application for discharge refused – application to modify granted in part – compensation – Law of Property Act 1925, s84(1)(a) (aa) (c) and (ii)
[2006] EWLands LP – 20 – 2005
Bailii
Law of Property Act 1925 84
England and Wales

Updated: 10 August 2021; Ref: scu.246693

Walker v Constable: 20 Jun 1798

[1798] EngR 165, (1798) 1 Bos and Pul 306, (1798) 126 ER 919
Commonlii
England and Wales
Cited by:
See Also – Walker v Constable 1803
. .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.348915

Woolwich Plc v Gomm, Fairbairn: CA 21 Sep 1999

A borrower took out a loan under undue influence. The test of whether the lender was fixed with notice of this was an objective one. The lender was fixed with the knowledge of its agent solicitor, but whether it was so fixed was not dependent upon the terms of the particular appointment of that solicitor agent.
Gazette 08-Sep-1999, Times 21-Sep-1999, [1999] EWCA Civ 1989
Law of Property Act 1925 199
England and Wales

Updated: 09 August 2021; Ref: scu.90603

Hughes v Incumbent of The Benefice of Frampton-On-Severn, Arlingham, Saul, Fretherne and Framilode: UTLC 4 Aug 2021

LAND REGISTRATION – EASEMENTS AND PROFITS – acquisition of an easement by prescription – lost modern grant – the extent of the use required – whether the use was sufficient to put the servient owner on notice that a right was being asserted
[2021] UKUT 184 (LC)
Bailii
England and Wales

Updated: 09 August 2021; Ref: scu.666471

University of Birmingham v Persons Unknown: ChD 22 Jan 2015

Applicaion to extend a Writ of Possession used to restrain a pattern of disruptive and occupational protests of University buildings across the whole of the University campus, which was having a deleterious effect upon University life generally, both of students and staff, as well as of other lawful visitors.
Purle QC HHJ
[2015] EWHC 544 (Ch)
Bailii
England and Wales

Updated: 07 August 2021; Ref: scu.543952

Durand Education Trust, Regina (on The Application of) v Secretary of State for Education: CA 8 Dec 2020

A PSED breach can vitiate an impugned decision or action (‘outcome’), subject to principles of materiality and the statutory test of ‘highly likely: not substantially different’
[2020] EWCA Civ 1651, [2021] ELR 213
Bailii, Judiciary
England and Wales
Citing:
Appeal from – Durand Academy Trust, Regina (on Application of) v The Office for Standards In Education, Children’ Services and Skills and Another Admn 11-Aug-2017
. .

Cited by:
Cited – Rowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.656653

Asher v Whitlock: CEC 3 Nov 1865

Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A claimant’s previous possession is evidence of his title (or of his prior seisin), but it is rebuttable evidence, and if rebutted by other evidence, the right to claim possession dissolves
(1865) LR 1 QB 1, [1865] UKLawRpKQB 3
Commonlii
England and Wales
Cited by:
Cited – Alan Wibberley Building Ltd v Insley HL 24-Mar-1999
The parties disputed ownership of a strip of land between a garden and a farm. The land was registered. There was a hedge and a ditch along the disputed boundary, it had been conceded in the Court of Appeal that a conveyance of land on the hedge . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.183764

Secretary of State for Transport v Curzon Park Ltd and Others: CA 6 May 2021

‘Where land is acquired compulsorily, compensation is assessed on the basis of a hypothetical sale in the open market. The legislation requires that hypothetical sale to be assessed on the basis of certain counter-factual assumptions; in particular assumptions about planning permission. The issue that arises on this appeal is how those assumptions mesh with the real world.’
Lord Justice Lewison
[2021] EWCA Civ 651
Bailii, Judiciary
Land Compensation Act 1961 17
England and Wales

Updated: 05 August 2021; Ref: scu.662386

Noakes and Co Ltd v Rice: HL 17 Dec 1901

Rule Against Clog on equity of Redemption

A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the security of the mortgage, sell malt liquor in the public house other that that purchased from the brewery.
Held: The covenant was not enforceable after redemption of the charge.
Lord MacNaghten said of the rule preventing a clog on the equity of redemption of a mortgage: ‘Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself. And it is, I think, as firmly settled now as it ever was in former times that equity will not permit any device or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that, when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be as free and unfettered to all intents and purposes as if the land had never been made the subject of the security.’
Lord Lindley said: ‘My Lords, I agree in thinking that the covenant contained in this mortgage, and by which the mortgagees have attempted to convert the house mortgaged from a free public-house into a tied public-house even after redemption, is invalid. I see no answer to the objection taken to it that upon payment off of the mortgage money the mortgagor cannot get back what he mortgaged, namely, a free public-house.’
Earl of Halsbury LC, Lord MacNaghten, Lord Lindley
[1902] AC 24, [1901] UKHL 3
Bailii
England and Wales
Cited by:
Cited – G and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
Cited – Jones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.443246

Sainsbury’s Supermarkets Ltd v Wolverhampton City Council: CA 31 Jul 2009

The council wanted to exercise its powers of compulsory purchase so as to allow them to acquire the claimant’s land to go toward the completion of the development of a competitor’s proposed supermarket. The claimant sought judicial review, saying that this was not a purpose for which the section could be used.
Held: The claimant’s appeal against the refusal of review failed. Though the benefits referred to did not fall with 226(1A), the council had a duty to consider all maerial considerations under 226(1)(a), and the benefits of the selected scheme were such. Under 226(1A), though the benefits of purchase had to flow from the land itself, the council could allow for the cross subsidy implicit in the development of the site as a whole.
The Council had made a compulsory purchase order of the company’s land in order to facilitate the building of a supermarket by a competitor, Tesco.
Lord Justice Ward, Lord Justice Mummery and Lord Justice Sullivan
[2009] EWCA Civ 734, [2009] EWCA Civ 835, Times 21-Aug-2009, [2010] 1 P and CR 10
Bailii, Bailii
Town and Country Planning Act 1990 226(1)(a)
England and Wales
Citing:
Cited – Sainsbury’s Supermarkets Ltd, Regina (on the Application of) v Wolverhampton City Council and Tesco Stores Ltd Admn 3-Feb-2009
Each supermarket company and the authority owned part of the site. The authority had granted each an outline permission for a new store, but had decided to allow the Tesco store to proceed. The claimant had at one point indicated that it did not . .
Appeal from – Sainsbury’s Supermarkets Ltd, Regina (on the Application of) v Wolverhampton City Council and Tesco Stores Ltd Admn 3-Feb-2009
Each supermarket company and the authority owned part of the site. The authority had granted each an outline permission for a new store, but had decided to allow the Tesco store to proceed. The claimant had at one point indicated that it did not . .

Cited by:
Appeal from – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.371877

Universal Corporation v Five Ways Properties Limited: CA 1978

The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude section 49(2) and the purchaser applied under that section for the repayment of the deposit.
Held: Reversing the decision at fist instance, the application for a strike out failed. The court considered the jurisdiction to order the return of a deposit paid under a contract for the sale of land.
Buckley LJ said: ‘a discretion which must, of course, be exercised judicially, and with regard to all relevant considerations, including the very important consideration of the terms of the contract into which the parties have chosen to enter . . . the jurisdiction is one to be exercised where the justice of case requires. In this connection I take the word ‘justice’ to be used in a wide sense, indicating that repayment must be ordered in any circumstances which make this the fairest course between the two parties.’ and ‘I prefer to the judge’s approach to the construction of this subsection the approach of Megarry V-C who has expressed the view that the jurisdiction is one to be exercised where the justice of the case requires: see what he said in Schindler v Pigault. In this connection I take the word ‘justice’ to be used in a wide sense, indicating that repayment must be ordered in any circumstances which makes this the fairest course between the two parties. It is, I think, relevant in the present case that condition 22 of the national conditions does not confer on the vendor an unqualified right to forfeit a deposit. The words in para 3 of the conditions are ‘. . the purchaser’s deposit may be forfeited (unless the court otherwise directs)’. This formula may well have been adopted with the terms of section 49(2) in mind. However that may be, in my view the language makes clear that the vendor does not have an absolute right to retain the deposit paid by a purchaser who is in default under the condition.’
Eveleigh LJ said that the limitation applied by the judge was not ‘plain and obvious’.
The judge dealt with the topic of frustration quite shortly. He said:
‘But quite emphatically the doctrine of frustration cannot be brought into play merely because the purchaser finds, for whatever reason, he has not got the money to complete the contract’
Buckley LJ, Eveleigh LJ
[1979] 1 All ER 552, [1978] 123 SJ 33, [1979] 39 P and CR 687, (1978) 250 EG 447
Law of Property Act 1925 49(2)
England and Wales
Citing:
Applied – Schindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .
Appal from – Universal Corporation v Five Ways Properties Ltd ChD 1978
Purchasers of a property intended to finance the purchase from monies deposited in a bank in Nigeria. Due to a change in exchange control regulations, the money was received some six weeks late, and after a notice to complete had expired and the . .

Cited by:
Cited – Aribisala v St James Homes (Grosvenor Dock) Ltd ChD 12-Jun-2007
The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Too restrictive – Tennaro Ltd v Majorarch 2003
The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.266200

Hepworth v Pickles: ChD 2 Nov 1899

The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract.
Held: His action failed. The covenant had been waived or released. Farwell J said: ‘if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful.’
Farwell J
[1900] 1 Ch 108, [1900] 69 LJ Ch 55, [1900] 81 LT 818, [1900] 48 WR 184, [1900] 44 Sol Jo 44
England and Wales
Citing:
Cited – Flight v Barton 1832
The silence of the vendor’s agent is equivalent to a representation that there is no covenant prohibiting the current use of a property being sold. . .
Followed – Gibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .
Followed – In re Summerson (Note) 23-Feb-1899
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property . .

Cited by:
Cited – Attorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
Cited – 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 – Greenhalgh v Brindley 1901
. .
Cited – Tew v South Northamptonshire Council UTLC 20-Sep-2010
UTLC COMPULSORY PURCHASE – disused public house in poor condition – value as public house/restaurant – comparables – value for residential development – residual valuation – whether developer demand still buoyant . .
Mentioned – Jacey Property Company Ltd v De Sousa and others CA 28-Feb-2003
. .
Cited – City and Westminster Properties v Mudd ChD 1958
. .
Cited – Re Lower Onibury Farm, Onibury, Shropshire, Lloyds Bank Ltd v Jones 1955
Long acquiescence by a landlord, or a failure to insist on his rights, does not amount to a release from a covenant, unless his conduct is wholly inconsistent with the continued existence of the covenant or shows that he intended to waive . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.252340

Swiss Bank Corporation v Lloyds Bank Ltd: CA 1981

An equitable charge is created when property is expressly or constructively made liable to the discharge of a debt or some other obligation, and the charge confers on the chargee a right of realisation by judicial process such as a sale order. Buckley LJ said: ‘An equitable charge may, it is said, take the form either of an equitable mortgage or of an equitable charge not by way of mortgage. An equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal estate or title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee, or in other words evidences a contract to do so: see Fisher and Lightwood’s Law of Mortgage, 9th ed. (1977), p. 13. An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale: see Fisher and Lightwood, p. 14’
He also said: ‘It follows that whether a particular transaction gives rise to an equitable charge of this nature must depend upon the intention of the parties ascertained from what they have done in the then existing circumstances. The intention may be expressed or it may be inferred. If the debtor undertakes to segregate a particular fund or asset and to pay the debt out of that fund or asset, the inference may be drawn, in the absence of any contra indication, that the parties’ intention is that the creditor should have such a proprietary interest in the segregated fund or asset as will enable him to realise out of it the amount owed to him by the debtor: compare In re Nanwa Gold Mines Ltd [1955] 1 W.L.R. 1080 and contrast Moseley v. Cressey’s Co. (1865) L.R. 1 Eq. 405 where there was no obligation to segregate the deposits. But notwithstanding that the matter depends upon the intention of the parties, if upon the true construction of the relevant documents in the light of any admissible evidence as to surrounding circumstances the parties have entered into a transaction the legal effect of which is to give rise to an equitable charge in favour of one of them over property of the other, the fact that they may not have realised this consequence will not mean that there is no charge. They must be presumed to intend the consequence of their acts.’
Buckley LJ
[1982] AC 584, [1981] 2 All ER 449, [1981] 2 WLR 893
England and Wales
Citing:
Adopted – Palmer v Carey PC 1926
A lender financed a trader in goods, on the basis the proceeds of sale of the goods be paid into an account in the name of the lender, and that the lender recoup himself on a monthly basis in respect of sums advanced, with the balance being released . .
Appeal from – Swiss Bank Corporation v Lloyds Bank Ltd 1979
A subjective test was applied as to whether the court could find an intention to interfere with contractual relations. . .

Cited by:
Cited – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Cited – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .
Cited – Ernst Kastner v Marc Jason, Davis Sherman, Brigitte Sherman CA 2-Dec-2004
The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Cited – Gotham v Doodes CA 25-Jul-2006
gotham_doodesCA2008
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.179797

Lord Advocate v Lord Lovat: SCS 7 Mar 1879

[1879] SLR 16 – 418
Bailii
Scotland
Cited by:
Appeal from – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 August 2021; Ref: scu.614739

Simon Lord Lovat v Hugh, The Son of Alexander Mackenzie of Fraserdale, Stiling Himself Hugh Master of Lovat: HL 22 Jan 1723

Life-rent Escheat – Aliment of the Fiar – An estate being settled by entail, upon a person in life-rent, and a certain series of heirs in fee, with the burden of an aliment to the first substitute: the life-renter forfeits his life-rent escheat for treason; and the Court of Session having, in a competition with the donator, granted an aliment to the fiar, their judgment is reversed.
[1723] UKHL Robertson – 449, (1723) Robertson 449
Bailii
Scotland

Updated: 31 July 2021; Ref: scu.553795

Michael Batt Charitable Trust v Adams: ChD 2001

The court looked at what was required to establish adverse possession in a claim for land. Laddie J said: ‘The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired the fence separating the disputed land from Rushymead . . A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination, there is nothing in this case that suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others.’
Laddie J
(2001) 82 P and CR 406, [2001] 2 EGLR 92
England and Wales
Cited by:
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Inglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Chambers v London Borough of Havering CA 20-Dec-2011
chambers-HaveringCA2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.228936

Browne v Perry: PC 14 Oct 1991

(Antigua and Barbuda) The parties disputed a claim for land by adverse possession.
Held: Any acknowledgement of a paper title must be in writing. Lord Templeman explained the rule against reliance upon oral acknowledgements in adverse possession cases: ‘If an oral acknowledgment were allowed to constitute an interruption litigation would be encouraged and litigants would dispute what was said, by whom and to whom . . Once an acknowledgment has been reduced to writing, there is certainty about the words used and the court need only decide whether the words which have been written amount to an acknowledgment. There is no room for fraud, mistake or failure of memory. The written word speaks for itself.’
Lord Templeman, Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Goff, Sir Maurice Casey
[1991] WLR 1297, [1991] UKPC 33
Bailii
Limitation Act 1980 S1
England and Wales
Cited by:
Cited – Mayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.187455

Lord Advocate v Lord Lovat: 1880

Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.’
Lord Blackburn said: ‘I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value.’
Lord O’Hagan
(1880) 5 App Cas 273
Scotland
Citing:
Cited – Lord Advocate v Lord Blantyre HL 1879
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act . .
Appeal from – Lord Advocate v Lord Lovat SCS 7-Mar-1879
. .

Cited by:
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Treloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
Cited – R and B Customs Brokers Co Ltd v United Dominions Trust Ltd CA 1988
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.267350

London Borough of Lewisham v Pearmain (Compensation – Compulsory Purchase): UTLC 25 Jun 2021

Compulsory Purchase – pre-fabricated bungalow acquired by General Vesting Declaration – market value – comparable evidence of bungalows, flats and terraced housing – limitations on secured borrowing restricting potential purchasers – compensation for disturbance on temporary and permanent relocation
[2021] UKUT 154 (LC)
Bailii
England and Wales

Updated: 27 July 2021; Ref: scu.665551

Peech v Best: CA 1931

The defendant owned a 700 acre farm. He granted to the plaintiff ‘the exclusive right of shooting and sporting in over and upon it’ for a term of fourteen years. With still some four years of the term to run, he conveyed 12 acres of the farm for the erection of racing stables. The plaintiff objected.
Held: The building substantially interfered with or limited the shooting rights, and was therefore a derogation from the defendant’s grant of which the plaintiff could complain. Scrutton LJ said: ‘It appears to me that fundamentally changing the character of the land over which sporting rights are granted . . if it has the necessary effect of substantially injuring the rights of others is a derogation from grant, and is a substantial interference with the profit a prendre granted.’ The case of Farrar shows that: ‘both landlord and sporting tenant must use their land reasonably having regard to the interest of the other, and will be liable for damage caused to the other by extraordinary, non-natural, or unreasonable action.’
Scrutton LJ
[1931] 1 KB 1
England and Wales
Citing:
Explained – Farrer v Nelson 1885
The plaintiff was tenant of a farm over which the defendants’ predecessor had reserved shooting rights. The defendants had brought pheasants in coops on to land very close to the plaintiffs’ farm. The came onto the farm damaging his crops. The . .

Cited by:
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Pole and Another v Peake and Another CA 17-Jul-1998
The defendants owned land over which the plaintiffs owned shooting and other sporting rights. When the plaintiffs licenced those rights to others the defendants objected and prevented access. They appealed a finding that they had infringed the . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.220698

G4S Care and Justice Services (UK) Ltd v Manley: QBD 30 Sep 2016

The appellant company managed a prison They now appealed against an order finding them liable to the claimant prisoner for personal injury under the 1957 Act. The claimant had been returned to the prison after a hip operation. The lights went out. He called for assistance, but after a delay, he further injured himself attempting to use the toilet in the cell in the dark.
Held: ‘The judge applied the correct approach to the assessment of whether or not there had been a breach of the duty of care prescribed by section 2 of the Act. He asked the correct questions and applied the correct law. His decision was one that he was entitled to reach on the evidence before him. Furthermore, his decision turned on the particular facts of this case and did not involve the imposition of an unduly high standard of care. For those reasons, this appeal is dismissed.’
Lewis J
[2016] EWHC 2355 (QB)
Bailii
Occupier’s Liability Act 1957 1
England and Wales
Citing:
Cited – West Sussex County Council v Pierce (A Child) CA 16-Oct-2013
‘The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises’ . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2021; Ref: scu.570510

Cole and Another v National Grid Electricity Transmission Plc: UTLC 27 May 2021

BLIGHT NOTICE – Hinkley Point C Connection Project – rights acquired over garden and out building of house in rural location – existing pylons to be removed – new pylons and underground high voltage cables to be installed – whether property blighted – ss.150(1), 151(4)(c) and (g), Town and Country Planning Act 1990 – reference dismissed
[2021] UKUT 126 (LC) (Comm)
Bailii
England and Wales

Updated: 24 July 2021; Ref: scu.665545

Foy v Hertfordshire County Council: CA 1 May 1990

The council owned land over which a public right of way existed. For many years, the path had been part of land used from time to time for the storage of chippings. The plaintiff had complained that it was a highway.
Held: The Council’s appeal failed. The fact that a highway may be obstructed from time to time does mean that it ceases to be a highway. Whether the highway was in fact obstructed unlawfully would have to be tested in different proceedings.
Lloyd LJ said: ‘In this case we are concerned with a small triangle of land at Wilstone Green near Tring in Hertfordshire. It is shown well on a plan annexed to the amended defence of the Hertfordshire County Council at page 9 of the bundle. The triangle in question measures 40 feet from A to B, 120 feet from B to C and 120 feet from A to C. For many years the triangle has been used by the County Council, as highway authority, for the storage of stone chippings for the maintenance of the highway. The question before us is whether the triangle forms part of the highway’
Lloyd LJ, Bedlam LJ
Times 04-May-1990
England and Wales

Updated: 22 July 2021; Ref: scu.537763

National Westminster Bank plc v Patel and another: QBD 1 May 2004

The defendant had executed a charge over his property in favour of the claimant. It was an all monies charge and the bank sought to enforce its security in respect of borrowings taken only after the charge. The customer said that the nature of the charge had not been adequately explained to him.
Held: The evidence was to the effect that the defendant had been told that the security applied only to the loan being taken at the time. The bank was ordered to vacate its charge.
MacDuff QC HHJ
[2004] All ER (D) 429
England and Wales

Updated: 22 July 2021; Ref: scu.536637

Thakker v Northern Rock Plc: QBD 5 Feb 2014

Simler QC
[2014] EWHC 2107 (QB)
Bailii
England and Wales
Citing:
Cited – National Westminster Bank plc v Skelton (Note) 1993
The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.535240

Holbeck Hall Hotel Limited (Now Known As Dawntime Limited), English Rose Hotels (Yorkshire) Limited (Formerly Imfoss Limited and Also Formerly English Rose Hotels Limited) v Scarborough Borough Council: QBD 5 Dec 1997

[1997] EWHC QB 355
Bailii
England and Wales
Citing:
Reserved from – Holbeck Hall Hotel Limited and English Rose Hotels (Yorkshire) Limited v Scarborough Borough Council QBD 2-Oct-1997
The occupier of land which was downhill of dominant land has the same obligation in nuisance and otherwise as the uphill neighbour. A right of support was included. . .

Cited by:
Reserved matters to – Holbeck Hall Hotel Limited and English Rose Hotels (Yorkshire) Limited v Scarborough Borough Council QBD 2-Oct-1997
The occupier of land which was downhill of dominant land has the same obligation in nuisance and otherwise as the uphill neighbour. A right of support was included. . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2021; Ref: scu.136110

London Borough of Lambeth v Grant and Others: QBD 5 Jul 2021

trespass – statutory common land – possession – Article 6, 7, 10, 11 ECHR – fair hearing – judicial independence – effect of media reports of ongoing case – effect of public profile of a party
[2021] EWHC 1857 (QB)
Bailii
England and Wales
Cited by:
See Also – London Borough of Lambeth v Grant and Others QBD 12-Jul-2021
Claim for occupation of land against trespassing demonstrators. . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2021; Ref: scu.666043

London Borough of Lambeth v Grant and Others: QBD 12 Jul 2021

Claim for occupation of land against trespassing demonstrators.
Mr Justice Chamberlain
[2021] EWHC 1962 (QB)
Bailii
England and Wales
Citing:
See Also – London Borough of Lambeth v Grant and Others QBD 5-Jul-2021
trespass – statutory common land – possession – Article 6, 7, 10, 11 ECHR – fair hearing – judicial independence – effect of media reports of ongoing case – effect of public profile of a party . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2021; Ref: scu.666042

Major Forbes of Pitrichie, Esq v Andrew Skene of Dyce, and Others: HL 25 Jan 1757

Entail. – Heir Female. – Passive Representation.-
1. An entail conceived to heirs male, whom failing, to the entailer’s daughters by name, and the heirs male of their body. Held that a son of one of these daughters was not an heir female, but an heir male in virtue of the destination. 2. There being no annulling clause in the entail, held that the debts contracted by a previous heir affected the succeeding heir under the passive titles.
[1757] UKHL 1 – Paton – 628
Bailii
Scotland

Updated: 20 July 2021; Ref: scu.558235

Sherbrooke v Dipple: 1980

Parties to a conveyancing context can get rid of the qualification ‘subject to contract’ only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied.
(1980) 41 P and CR 173
England and Wales
Citing:
Cited – Tevanon v Norman Brett (Builders) Ltd 1972
Brightman J said: ‘parties could get rid of the qualification of ‘subject to contract’ only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied . . ‘ [W]hen parties started their . .

Cited by:
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.188284

Freetown v Assethold Ltd: CA 14 Dec 2012

A party to an arbitration under the 1996 Act disputed whether the award had been served so as to leave that party out of time to appeal.
Rix LJ spoke of the common law as requiring proof of receipt, whereas the Interpretation Act deemed receipt from proof of posting. But he did not thereby mean that the common law required it to be shown that the document had actually come to the attention of the recipient, merely that it had been duly delivered at the recipient’s address.
Sir Andrew Morritt C, Rix, Patten LJJ
[2012] EWCA Civ 1657, [2013] 1 EGLR 57, [2013] CP Rep 16, [2013] 2 All ER 323, [2013] 1 EG 49, [2012] WLR(D) 379, [2013] RVR 150, [2013] 11 EG 82, [2013] 1 WLR 701
Bailii, WLRD
Party Wall etc Act 1996 15(1), Interpretation Act 1978 7
England and Wales
Citing:
Cited – C A Webber (Transport) Ltd v Railtrack plc CA 15-Jul-2003
A notice served under s25 of the 1954 Act, being sent by recorded delivery to the tenant at its place of abode, was irrebuttably deemed to have been served on the day it was posted. Section 23 of the 1927 Act operated to disapply section 7 of the . .
Appeal from – Freetown Ltd v Assethold Ltd QBD 21-May-2012
Appeal from party wall award. . .

Cited by:
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.467131

Freetown Ltd v Assethold Ltd: QBD 21 May 2012

Appeal from party wall award.
Slade DBE J
[2012] EWHC 1351 (QB), [2013] 1 P and CR 3, [2012] WLR(D) 162, [2012] 33 EG 44, [2012] 4 All ER 194, [2012] 22 EG 84, [2013] 1 WLR 385, [2012] 2 EGLR 89
Bailii, WLRD
England and Wales
Cited by:
Appeal from – Freetown v Assethold Ltd CA 14-Dec-2012
A party to an arbitration under the 1996 Act disputed whether the award had been served so as to leave that party out of time to appeal.
Rix LJ spoke of the common law as requiring proof of receipt, whereas the Interpretation Act deemed receipt . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.458608

Fathers Field Developments Ltd v Namulas Pension Trustees Ltd (Restrictive Covenants – Discharge): UTLC 12 Jul 2021

RESTRICTIVE COVENANTS – DISCHARGE – three houses built on part of golf course – 30- year covenants restricting residential development without consent – objector having no retained land – price for consent not a practical benefit – no loss or disadvantage to objectors – s,84(1) (aa) and (c), Law of Property Act 1925 – application granted
Judge Elizabeth Cooke and Peter McCrea FRICS FCIArb
[2021] UKUT 169 (LC)
Bailii
England and Wales

Updated: 19 July 2021; Ref: scu.665554

Gumbs v Attorney General Of Anguilla: PC 7 Jul 2009

Anguilla – whether there is a public right of way, and, if there is, the extent of that way, over a parcel of land at Little Bay, Anguilla.
Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury, Sir Jonathan Parker
[2009] UKPC 27
Bailii
England and Wales
Citing:
Dictum Approved – Regina v Central Valuation Officer and another ex parte Edison First Power Limited HL 10-Apr-2003
Powergen sold a property to Edison. Powergen paid rates under a separate statutory rating regime, and paid an additional thirteen million pounds under an apportionment. Edison later complained that in being rated itself, the authorities had . .

Cited by:
Mentioned – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.349081

Smith v Goodwin (Restrictive Covenants – Modification – Covenant Preventing More Than One House Per Plot): UTLC 18 Jun 2021

Covenant preventing more than one house per plot – no injury to sole objector – lack of planning permission – the Tribunal’s discretion to modify – application to discharge refused – application to modify granted conditionally – Law of Property Act 1925 S.84(1)(c)
Peter D McCrea FRICS FCIArb
[2021] UKUT 145 (LC)
Bailii
England and Wales

Updated: 18 July 2021; Ref: scu.665552

Forsyth-Grant v Allen and Another: CA 8 Apr 2008

Claimant’s appeal against judgment in action for trespass and nuisance, arising out of the construction by the defendants of a pair of semi-detached houses on land adjoining the Hotel Picardie at Ventnor on the Isle of Wight, which was owned by the claimant. Trespass and infringement of right to light. Rejection of action for share of profits.
Patten J held that the case of Wass ‘limited’ the possibility of an award of damages on a restitutionary basis and: ‘An actionable nuisance does not involve the misappropriation of the claimant’s rights in the same way, even as in a case of trespass, let alone as in a case of conversion or copyright or trademark infringement. The essence of the tort is that the claimant’s rights to the reasonable enjoyment of her property have been infringed by the use which the defendant makes of his own land. On the face of it, this should not entitle the claimant, in my judgment, to more than compensation for the loss which she has actually suffered; but the highest that it could be put on the authorities is that the claimant can, in appropriate cases, obtain an award calculated by reference to the price, which the defendant might reasonably be required to pay for a relaxation of the claimant’s rights so as to avoid an injunction. This, as already explained, falls a long way short of being awarded the whole profit for the development, which is far in excess and completely unrelated to the measure of loss suffered by the claimant.
Mr Ley referred us to a passage in Lord Keith’s speech in A-G v Guardian Newspapers Ltd [1990] 1 AC 109, [1988] 3 WLR 776, but that was also an action for breach of confidence where equity has always asserted a jurisdiction to order an account of profits; it is not authority for the making of such an order in a case of nuisance. It seems to me that the judge would have been entitled to reject the claim for an account of profits outright, simply on the basis that it was not an available remedy in an action for nuisance; but even if that is wrong, his acceptance that one needs to show exceptional circumstances is not, in my judgment, open to criticism.’
Patten J, Mummery, Toulson LJJ
[2008] EWCA Civ 505, [2008] Env LR 41
Bailii
England and Wales
Citing:
Applied – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .

Cited by:
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.267901

Jerome v Kelly (Her Majesty’s Inspector of Taxes): HL 13 May 2004

In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial interests (subject to the contract) to the trustees of two Bermuda settlements. By three conveyances in 1990-1992, the original trustees completed the contract of sale. The revenue claimed that the disposal was made at the time of the contract; the taxpayer argued for the time of the conveyances.
Held: The section did not provide a clear answer for this situation. The section was intended to fix the time of disposal. It was not intended to impose a liability to tax upon a person who would not be treated as having made a disposal under the carefully constructed scheme for taxing the disposals of assets held on trust, particularly where this might lead to a double charge to tax.
Lord Walker said that ‘beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed . . ‘
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2004] UKHL 25, Times 20-May-2004, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176
House of Lords, Bailii
Capital Gains Tax Act 1979 46 58
England and Wales
Citing:
Appeal from – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .
Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Cited – Eastham v Leigh London and Provincial Properties Ltd CA 1971
A contract is not conditional merely because it contains obligations which may be termed promissory conditions. The taxpayer company was the prospective tenant under a building agreement. By clause 4 it agreed to build a six-story office block in . .
Cited – Lysaght v Edwards ChD 20-Mar-1876
The testator had agreed to sell a farm, but died before completion.
Held: The farm passed under a devise of ‘all the real estate which at my death might be vested in me as trustee.’ On the making of contract for the purchase of land, the . .
Cited – Shaw v Foster HL 14-Mar-1872
As regards the trusteeship which arises for a vendor of land after exchange of contracts: ‘there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the . .
Cited – Kirby v Thorn EMI Plc 1987
Taxation of asset assigned before it was created. . .
Cited – Rayner v Preston CA 8-Apr-1881
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance.
Held: . .
Cited – Aberdeen Construction Group Ltd v Inland Revenue Commissioners HL 1978
The House gave guidance on the interpretation of Tax statutes.
Held: The consideration at issue had been paid both for shares and for something else, the waiver of a loan the seller had made to the company. Lord Wilberforce emphasised the need . .
Cited – Chang v Registrar of Titles 11-Feb-1976
(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .
Cited – Burca v Parkinson ChD 2001
An assignment of the consideration due under a contract does not alter the capital gains tax liability of the person making the disposal. . .

Cited by:
Appealed to – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .
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 . .
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 . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.196757

Englewood Properties Limited v Patel and Another: ChD 16 Feb 2005

The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had purchased and then created a lease back. The underlease contained a covenant not to permit any other fixed price store in the row, and to include similar covenants in any other leases or conveyances. The leaseback contained an appropriate covenant. The defendant were successful at the auction. Their solicitors were refused a reassurance that conveyances of the other shops sold at the auction would comply with the covenant. They refused to complete.
Held: Between exchange and completion, the sellers held the property on trust for the buyers, and had a duty to maintain it in the same conditions as on exchange. That duty did not extend to its management of neighbouring properties, and the defendant was not free to insist upon such covenants or refuse to complete.
Mr Justice Collins Mr Justice Collins
[2005] EWHC 188 (Ch), Times 09-Mar-2005, [2005] 3 All ER 307, [2005] 1 WLR 1961
Bailii
England and Wales
Citing:
Cited – Dowson v Solomon 1859
The defendant had agreed at auction to buy a leasehold house from the trustees for sale under a will. The lease contained a covenant on the lessee to keep the premises insured against fire, with a clause for forfeiture in the event of . .
Cited – Belvedere Court Management Ltd v Frogmore Developments Ltd CA 24-Oct-1995
Landlords had sold flats to Frogmore without serving a section 5 notice under the 1987 Act. Prior to receipt of a purchase notice, Frogmore granted certain leases in the block of flats to another party.
Held: The agreements were upheld, and . .
Cited – Heronsgate Enterprises Ltd v Harman (Chesham) Ltd CA 21-Jan-1993
The court described the duties of a vendor as trustee of the property after exchange but before completion: ‘It is well-established law that, subject always to the terms of the particular contract, a seller of property under a specifically . .
Cited – Shaw v Foster HL 14-Mar-1872
As regards the trusteeship which arises for a vendor of land after exchange of contracts: ‘there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the . .
Cited – Berkely v Poulett CA 1977
The court discussed the duties of a vendor to the property between exchange and completion: ‘These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – Lysaght v Edwards ChD 20-Mar-1876
The testator had agreed to sell a farm, but died before completion.
Held: The farm passed under a devise of ‘all the real estate which at my death might be vested in me as trustee.’ On the making of contract for the purchase of land, the . .
Cited – Egmont v Smith CA 1877
The court discussed the position of a vendor of land between exchange and completion: ‘He is certainly a trustee for the purchaser, a trustee, no doubt, with peculiar duties and liabilities, for it is a fallacy to suppose that every trustee has the . .
Cited – In Re Hamilton-Snowball’s Conveyance 1958
The vendor had received, between contract and completion, compensation for the requisition of the premises.
Held: The vendor under a contract for sale is only a qualified trustee for the purchaser of the premises with vacant possession, . .
Cited – Clarke v Ramuz CA 9-Jul-1891
The vendor was accused of failing to prevent a trespasser removing soil from land between exchange and completion.
Where a vendor under a contract for sale of land keeps possession until completion and payment of the purchase-money, he is in . .
Cited – Rayner v Preston CA 8-Apr-1881
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance.
Held: . .
Cited – Raffety v Schofield 1897
Duty of vendor of land between exchange and completion to keep property in reasonable state of repair and as it was when contract was made. . .
Cited – Kern Corporation Ltd v Walter Reid Trading Pty Ltd 1987
(High Court of Australia) The court discussed the status of the owner of land between exchange and completion on a sale: ‘it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . .
Cited – Re Lyne-Stephens and Scott-Miller’s Contract CA 1920
A vendor of a house was entitled to retain the benefits of payments from a tenant made between contract and completion, because the vendor had sold the house but not yet also the benefit of the lease. . .
Cited – Musselwhite v CH Musselwhite and Son Ltd ChD 1962
Parties had agreed to transfer shares in a small family company for the payment of a sum of money by way of instalments over a period of time. The agreement provided the transfers of the shares should be executed and that the executed transfers and . .
Cited – In Re Hamilton-Snowball’s Conveyance 1958
The vendor had received, between contract and completion, compensation for the requisition of the premises.
Held: The vendor under a contract for sale is only a qualified trustee for the purchaser of the premises with vacant possession, . .
Cited – Golden Bread Co. v Hemmings 1922
Where there was a contract for the sale of premises together with the goodwill of the business carried on from the premises, there was a duty on the vendor not to let the business lapse, and to inform the purchaser with reasonable promptitude of . .
Cited – Cumberland Consolidated Holdings Limited v Ireland CA 1946
A vendor of a warehouse left in the cellars of a warehouse rubbish including bags of hardened cement which would be difficult to remove, and which affected the value of the property and precluded the proper use of the cellar. The buyer complained . .
Cited – Palmer v Goren 1856
The court considered events where a vendor of leasehold land had failed to maintain the insurance pending completion, and in breach of the lease: ‘It is, in fact, the duty of the vendor so to act that nothing done by him prior to the completion of . .
Cited – Sinclair-Hill v Southcott 1973
There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract.
Held: The principle of the vendor’s trusteeship . .
Cited – Abdulla v Shah PC 1959
(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as . .

Cited by:
Cited – Nelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.223104

Wrotham Park Settled Estates v Hertsmere Borough Council: CA 12 Apr 1993

Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be calculated, as the diminution to the neighbouring dominant land arising from building in breach of the covenant, or as the price which the dominant land-owner might have extracted for the release of the covenants.
Held: The compensation was to be calculated by diminution of value not by the expected price. Arguments that the compensation should reflect a share of any development value released on the servient tenement, were rejected.
Ind Summary 12-Apr-1993, [1993] 33 RVR 56, [1993] 2 EGLR 15, [1991] 62 P and CR 652
Compulsory Purchase Act 1965 10, Law of Property Act 1925 84
England and Wales
Citing:
Cited – Argyle Motors (Birkenhead) v Birkenhead Corporation HL 1974
The House described the way that the 1845 Act continued to affect the calculation of compensation: ‘The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Kirby v Harrogate School Board CA 1896
The Board had power under the 1870 Act to acquire land to build school accommodation. The 1845 Act was to apply ‘with respect to the purchase of land’ for the purposes of the 1870 Act. The Board began to erect a school building on a site which they . .
Cited – Long Eaton Recreational Ground Co v Midland Railway 1902
. .
Cited – Metropolitan Board of Works v McCarthy HL 1874
Compensation was awarded to the owner of a warehouse near Blackfriars because the construction of the Victoria Embankment cut off his access across the public highway to a dock on the river. Lord Cairns LC quoted Thesiger QC as saying: ‘Where by the . .
Cited – SJC Construction v Sutton London Borough Council CA 1976
An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word ‘substantial’ required applicants to show: ‘that the . .
Cited – Stockport Metropolitan Borough Council v Alwiyah Developments CA 1983
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
Cited – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Wrotham Park Settled Estates v Maclean Homes (North London) ChD 1-Feb-1985
. .

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

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.90627

Whitwham v Westminster Brymbo Coal and Coke Co: CA 24 Jun 1896

Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved trespass to land by tipping.
Lindley LJ observed ‘that if one man runs trucks on rails over another man’s land it does not do any harm whatever, and there is no pecuniary damage’, but that the law was now settled. He stated the principle: ‘if one person has without leave of another been using that other’s land for his own purposes, he ought to pay for such user.’
Rigby, Lindley LJ
[1896] 2 Ch 538, [1896] UKLawRpCh 112
Commonlii
England and Wales
Citing:
Approved – Jegon v Vivian 1871
Unauthorised mining of land – measure of damages.
Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. . .

Cited by:
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
jones_ruthCA11
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
ramzan_brooksideCA2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.180879

Lysaght v Edwards: ChD 20 Mar 1876

The testator had agreed to sell a farm, but died before completion.
Held: The farm passed under a devise of ‘all the real estate which at my death might be vested in me as trustee.’ On the making of contract for the purchase of land, the purchaser acquired an immediate equitable interest in the land.
The court discussed the equitable doctrine of conversion: ‘It appears to me that the effect of a contract for sale has been settled for more than two centuries; certainly it was completely settled before the time of Lord Hardwicke, who speaks of the settled doctrine of the Court as to it. What is that doctrine? It is that the moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid, in the absence of express contract as to the time of delivering possession’. But the trusteeship is not an ordinary trusteeship. ‘It must, therefore, be considered to be established that the vendor is a constructive trustee for the purchaser of the estate from the moment the contract is entered into.’
Sir George Jessel MR
(1876) 2 Ch D 449, [1876] UKLawRpCh 123
Commonlii
England and Wales
Cited by:
Cited – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .
Cited – Jerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – 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 . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.196884

Stoke-on-Trent City Council v W and J Wass Ltd: CA 1988

The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council sought damages and an injunction. It was awarded an injunction and damages in the amount of the licence fees it would have been able to charge.
Held: The award of damages was incorrect. Rules relating to damages for breach of restrictive covenant were not applicable to such a situation. The damages awarded should have been nominal at most.
Nourse LJ said: ‘The general rule is that a successful plaintiff in an action in tort recovers damages equivalent to the loss which he has suffered, no more and no less. If he has suffered no loss, the most he can recover are nominal damages. A second general rule is that where the plaintiff has suffered loss to his property or some proprietary right, he recovers damages equivalent to the diminution in value of the property or right. The authorities establish that both these rules are subject to exceptions. These must be closely examined, in order to see whether a further exception ought to be made in this case.’ and as to torts of trespass etc
‘But it is only in the last-mentioned case [i.e. Wrotham Park] and in the trespass cases that damages have been awarded in accordance with either principle without proof of loss to the plaintiff. In all the other cases, the plaintiff having established his loss, the real question has not been whether substantial damages should be awarded at all, but whether they should be assessed in accordance with the user principle or by reference to the diminution in value of the property or right. In other words, those other cases are exceptions to the second, but not to the first, of the general rules stated above.’
He finished by saying: ‘It is possible that the English law of tort, more especially of the so-called ‘proprietary torts’, will in due course make a more deliberate move towards recovery based not on loss suffered by the plaintiff but on the unjust enrichment of the defendant: see Goff and Jones The Law of Restitution(3rd edn, 1986) pp 612-614. But I do not think that that process can begin in this case and I doubt whether it can begin at all at this level of decision.’
Nicholls LJ said: ‘If, on the one hand, the unauthorised, other-day market has caused and is causing no loss, either of stallage or of tolls or under any of the other heads of loss which may affect the owner of a market right, there is no cause of action. There is, in that event, no question of applying the user principle. If, on the other hand, the owner of the market right does sustain loss under one or more of those heads, damages must surely be commensurate with the quantum of the loss so sustained. The damages will correspond, so far as the court can fairly assess them, to the amount of the loss flowing to the owner of the market right from the respects in which he has in fact been damnified in his enjoyment of that right by the holding of the unauthorised, other-day market. Again, there would be no place for awarding, by application of the user principle, damages in a sum greater than the amount of that loss.’ and
‘It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other’s property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner’s financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so.
Nourse LJ, Nicholls LJ
[1988] 3 All ER 394, [1988] 1 WLR 1406
England and Wales
Citing:
Explained – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .

Cited by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Applied – Forsyth-Grant v Allen and Another CA 8-Apr-2008
Claimant’s appeal against judgment in action for trespass and nuisance, arising out of the construction by the defendants of a pair of semi-detached houses on land adjoining the Hotel Picardie at Ventnor on the Isle of Wight, which was owned by the . .
Cited – Universal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .
Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – 32Red Plc v WHG (International) Ltd and Others ChD 12-Apr-2013
The court had found trade mark infringement by the defendant and now considered the quantification of damages. . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.186379

Battishill v Reed and Another: 28 May 1856

Action for disturbance of certain alleged rights of the plaintiff..
[1856] EngR 567, (1856) 18 CB 696, (1856) 139 ER 1544
Commonlii
England and Wales
Cited by:
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.291322

Re Shanavazi: ChD 7 Jul 2021

Part 8 claim seeking an order authorising the claimant, on behalf of her minor son, to enter into a contract of sale of a property in Germany, and to convey the property to the purchaser.
Master Clark
[2021] EWHC 1832 (Ch)
Bailii
England and Wales

Updated: 10 July 2021; Ref: scu.663857

Attorney General of The Turks and Caicos Islands and Another v Richardson (As Trustee In Bankruptcy of Yellowstone Club World Llc): PC 14 Mar 2013

(From the Court of Appeal of the Turks and Caicos Islands) Whether the Registrar was wrong to register a restriction, under section 132 of the Registered Land Ordinance, against property in respect of which the Government claimed an interest in respect of unpaid stamp duty.
Lord Hope, Lord Kerr, Lord Reed, Lord Carnwath, Sir John Chadwick
[2013] UKPC 9
Bailii
England and Wales

Updated: 09 July 2021; Ref: scu.471803

Brackenbank Lodge Ltd v Peart and Others: CA 4 Jun 1993

A right to stint, a grazing right, defeated an assertion of an interest in the freehold, and the stint holders were awarded a proprietary interest in the moor as tenants in common.
Ind Summary 28-Jun-1993, Times 04-Jun-1993
England and Wales
Cited by:
Appeal from – Brackenbank Lodge Ltd v Peart and Others HL 26-Jul-1996
The court overturned the decision of the Court of Appeal following the discovery of a very ancient report of a court hearing on the same issues. The Peart defendant had failed to disclose to his lawyers the existence of the judgment, and he should . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.78539

Kotarski and Another v Secretary of State for Environment, Food and Rural Affairs: Admn 13 May 2010

The applicant sought to challenge an enquiry resulting in the confirmation of of a public right of way across his land.
Simon J
[2010] EWHC 1036 (Admin)
Bailii
Wildlife and Countryside Rights of Way Act 1981
England and Wales
Citing:
Cited – Regina v Secretary of State for the Environment ex parte Burrows and Simms CA 1990
The conclusive character of the definitive map and statement is not intended to preclude the duty of the local authority to modify them where proper. If evidence came to light to show that a mistake had been made in drawing up the definitive map, . .
Cited – Trevelyan (On Behalf Of Himself and The Ramblers Association) v The Secretary of State for The Environment, Transport and The Regions CA 23-Feb-2001
An inspector, determining an application to remove a public bridleway from the definitive map, and where there was evidence only of use by foot, was right to start from the presumption that, if a right of way was shown on the definitive map, it was . .
Cited – Norfolk County Council, Regina (on the Application Of) v Secretary of State for Environment, Food and Rural Affairs Admn 10-Feb-2005
The claimant sought to challenge the confirmation of a public footpath. Pitchford J described how the court should interpret the definitive map made under the 1981 Act: ‘The correct approach to interpretation of the definitive map and statement must . .

These lists may be incomplete.
Updated: 25 June 2021; Ref: scu.414963

Hulley v Silversprings Bleaching and Dyeing Co Ltd: ChD 1992

A lower riparian owner sued the Silversprings company for nuisance.
Held: The fact that the plaintiff’s predecessors had acquiesced in pollution for twenty years was no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. Under the legal fiction of lost modern grant: ‘The evidence on both sides satisfies me that the defendants have continually, and down to very recent dates in this year, been committing offences against the Act – in other words, that the user on which they rely as establishing the easement is a user contrary to statute. A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail.’
As to the claim for a prescriptive right: ‘The progressive increase in the plant in the defendants’ mill and in the volume of water polluted is destructive of that certainty and uniformity essential for the measurement and determination of the user by which the extent of the prescriptive right is to be ascertained.’
Eve J
[1992] 2 Ch 268
Rivers Pollution Prevention Act 1876
England and Wales
Citing:
Applied – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .

Cited by:
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193597