Category: Land

Asertis Ltd v Clarkson and Others: ChD 10 Feb 2021

Claims brought by Mr C, who is the first defendant to the London proceedings, seeking various declarations concerning a substantial short-term loan taken out by Ten Acres from the lenders as to which default had occurred. As part of that claim, Mr C had asserted that he was the ultimate beneficial owner of a property in Manchester called Ten Acres which had been purchased using the lenders’ moneys and was held in Ten Acres’ name.
[2021] EWHC 1053 (Ch)
Bailii
England and Wales

Updated: 22 June 2021; Ref: scu.663037

Elithorn v Poulter and others: CA 11 Dec 2008

A house had been bought in joint names, but one owner had died. The deceased had contributed the full price. Her executors said that the couple had intended initially that on the sale of the others property, he would contribute, but this never happened. The survivor now appealed against a declaration that he held the property in trust absolutely for the deceased estate, saying that she had had loaned the money to him.
Held: The appeal succeeded and a retrial was ordered. The evidence did not support the existence of any loan arrangement, and much was inconsistent with it. It was not the function of the appeal court to find facts, only to see if the judge’s view was supported by evidence. The judge had however incorrectly summarised, and understood the cases prevented by either side, and his conclusion was inconsistent with Stack v Dowden. (Rix LJ dissenting)
Rimer LJ, Rix LJ, Wilson LJ
[2008] EWCA Civ 1364, [2009] 1 P and CR 19, [2009] 1 P and CR DG14
Bailii
England and Wales
Citing:
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .

Cited by:
Main Judgment – Elithorn v Poulter and Others (Costs) CA 11-Dec-2008
. .

These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.278976

Lord v Wardle: 25 Apr 1837

When property in land passes by a deed, the property in the deed passes with it.
An attorney who draws and attests a deed, conveying land from A. to B., is not allowed afterwards to say that the property in the land and deed did not pass.
Where a jury gave a general verdict for Defendant on three issues, having been mis-directed on one, the Court granted a new trial on payment of costs.
[1837] EngR 657, (1837) 3 Bing NC 680, (1837) 132 ER 572
Commonlii
England and Wales

Updated: 21 June 2021; Ref: scu.313774

Waters and others v Welsh Development Agency: CA 28 Jun 2002

The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the scheme which it enabled.
Held: The Pointe Gourde case remained applicable. The rule is that ‘compensation for a compulsory purchase acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition’ Carnwath LJ: ‘The right to compensation for compulsory acquisition is a basic property right. It is unfortunate that ascertaining the rules upon which compensation is to be assessed can involve such a tortuous journey, through obscure statutes and apparently conflicting case law, as has been necessary in this case. There can be few stronger candidates on the statute book for urgent reform, or simple repeal, than section 6 of and Schedule 1 to the 1961 Act.’
Lord Justice Laws, Carnwath LJ
Gazette 12-Sep-2002, [2002] EWCA Civ 924, [2003] 4 All ER 384, [2002] JPL 1481, [2002] RVR 298
Bailii
Land Compensation Act 1961 6
England and Wales
Citing:
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Stokes v Cambridge Corporation LT 1961
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When . .
Appeal From – Waters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .

Cited by:
Appeal from – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .

These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.174169

Marshall v Blackpool Corporation: HL 1934

A land-owner having land adjacent to a public highway has, at common law, free access to and from the highway at any point where they abut.
Lord Atkin said: ‘The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. Apart from any statutory provision there is no obligation upon an adjoining owner to fence his property from the highway . . Moreover the ordinary traffic on any highway is always liable to be increased by the exercise by an adjoining owner of this right of access. A building estate may be developed, or a theatre, concert hall, cinema, or hotel erected on premises which will necessarily involve incalculable increase of traffic. Subject to special statutory provisions protecting footpaths, the right of access is not affected by the fact that part of the highway is only dedicated as a footway, or is otherwise lawfully appropriated to foot passengers. The passage of the public along a footway is always liable to be temporarily interrupted by adjoining owners’ right of access, whether to the footway or the roadway: and the dangers, if dangers there be, of a pedestrian having his path crossed by vehicles exercising right of access may be increased, and lawfully increased, by the adjoining owner or owners increasing their means of access.’
Lord Atkin
[1935] AC 16, [1934] All ER 437
England and Wales
Cited by:
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Cited – Cusack v London Borough of Harrow CA 7-Dec-2011
The claimant sought compensation after the Borough ordered fencing to be erected along the roadside so as to obstruct vehicular access to and from his premises. If the action was taken under section 66(2) and not section 80, then Lewison LJ said . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.535124

Craddock and Another v Secretary of State for Transport (Compensation – Blight Notice): UTLC 1 Apr 2021

COMPENSATION – BLIGHT NOTICE – material date for consideration of appropriate authority’s objection – whether appropriate authority’s additional words by way of an ‘informative’ to statutory ground of objection made his counter-notice invalid – whether intention not to acquire well-founded – blight notice declared valid – Town and Country Planning Act 1990 section 151(4)(b)
[2021] UKUT 2 (LC)
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.662180

Moleta v Moleta: FTTPC 15 May 2019

Beneficial Interests, Trusts and Restrictions : Detriment
[2019] UKFTT 373 (PC)
Bailii
England and Wales
Citing:
See Also – Moleta v Moleta (BI) FTTPC 15-May-2019
Beneficial Interests, Trusts and Restrictions : Beneficial Interests, Trusts and Restrictions . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.645033

Wilson v Waddell: HL 1876

In the course of proper mineral workings by the defender, the soil above the coal, which was stiff and impervious to water, so that, whilst it was undisturbed, the greater part of the rainfall flowed away over the surface, was cracked into open fissures, through which the rainfall flowed freely down into the defender’s workings, towards the pursuer’s holding, out of which it had to be pumped at additional expense.
Held: The case was one of damnum absque injuria, giving rise to no claim for damages. An owner of land cannot complain of damage caused through the natural user of land by a neighbouring owner.
(1876) 2 App Cas 95
England and Wales
Cited by:
Cited – Willis and Another v Derwentside District Council ChD 10-Apr-2013
The claimants sought damages alleging the escape of noxious CO2 gas from the defendant’s neighbouring land. The gas originated from old coal workings.
Held: There had come to be a liability falling in the defendant from 2006. Its delay in . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.472534

Lord Kinnaird v Hunter and Others: HL 18 Feb 1765

Recording Entails.-
An entail contained no express prohibitions against granting leases, and the heir granted leases of 11, 19, and 38 years’ duration: Held, in a reduction of the leases, that they were good against singular successors, the entail not having been recorded, although executed before the date of the act 1685
[1765] UKHL 2 – Paton – 97, (1765) 2 Paton 97
Bailii
Scotland

Updated: 17 June 2021; Ref: scu.560607

David Ogilvie, Esq v Skene and Hunter: HL 4 Mar 1768

Infeftment – Dispensation Clause.-
Held, reversing the judgment of the Court of Session, that where parts of lands are conveyed by a party, whose charter contains a dispensation clause authorizing infeftment to be taken on a part for the whole, that the benefit of this dispensation clause is not lost to the parts alienated, when the conveyance is merely for life, to revert then to the granter, and that the infeftment taken on part was good for the whole.
[1768] UKHL 2 – Paton – 141, (1768) 2 Paton 141
Bailii
Scotland

Updated: 17 June 2021; Ref: scu.561004

David Cooper of Newgrange v Alexander Hunter of Balskelly, Et Alii: HL 11 Dec 1744

A creditor having adjudged the estate of his debtor, and likewise the right to an adjudication which the debtor had led against certain other lands; found that in a question with another adjudger of these last lands, he was bound to account for the rents and profits of the former, into possession of which he had entered in virtue of his degree.
[1744] UKHL 1 – Paton – 376
Bailii
Scotland

Updated: 17 June 2021; Ref: scu.556820

Savage v 60 Kent Road (Maintenance) Ltd (Restrictive Covenants – Discharge): UTLC 26 Apr 2021

RESTRICTIVE COVENANTS – DISCHARGE – OBSOLETENESS – Law of Property Act 1925, s. 84(1)(a) – Restriction against building or alterations without prior approval of plans and specifications by the vendors’ surveyor – Whether covenant obsolete following death of vendors – Covenant discharged
[2021] UKUT 102 (LC)
Bailii
England and Wales

Updated: 17 June 2021; Ref: scu.662184

Dowse v Bradford Metropolitan District Council: UTLC 23 Jun 2020

Land Registration – Adverse Possession – Schedule 6 to the Land Registration Act 2002 – application for registration opposed – paragraph 5 conditions – whether applicants in adverse possession – whether disputed land ‘adjacent to land belonging to the applicant’ – whether applicants reasonably believed that disputed land belonged to them – adequacy of findings made by First-tier Tribunal
[2020] UKUT 202 (LC)
Bailii
England and Wales

Updated: 16 June 2021; Ref: scu.652535

Noakes and Co Ltd v Rice: HL 17 Dec 2001

A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a clog on the equity so as to prevent effective redemption, and were invalid. Earl of Halsbury L said: ‘this was a mortgage, and that the equity of redemption is clogged and fettered here by the continuance of an obligation which would render this house less available in the hands of its owner during the whole period and beyond the whole period of the term, apart from the realization of the security. Under those circumstances, as a matter of the merest and simplest reasoning, I am wholly unable to come to any other conclusion than that there is a clog and fetter here which the law will not permit.’
Lord MacNaghten said: ‘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.’
Lord Lindley said: ‘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. The attempt to strengthen the tie by stipulating for liquidated damages and charging them on the property certainly does not mend matters, but makes them worse.’
Earl of Halsbury LC, Lord MacNaghten
[1902] AC 24, [1901] UKHL 3
Bailii
England and Wales
Citing:
Cited – Biggs v Hoddinott 1898
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money. . .
Cited – Browne v Ryan 1901
(Ireland – Court of Appeal) A farmer mortgaged his holding to secure andpound;200 and interest; and, as part of the mortgage transaction, it was stipulated that the mortgagor should sell his holding within twelve months, employ the mortgagee as the . .
Cited – Santley v Wilde CA 1899
Classic Definition of a Mortgage
Lord Lindley considered the nature of a mortgage and said: ‘The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is . .
Cited – Salt v Marquis of Northampton 1892
The court was asked whether a life policy, the premiums on which were charged against the mortgagor, was comprised in the mortgage security. That question having been decided in the affirmative, it was declared to be redeemable, notwithstanding an . .
Cited – Tulk v Moxhay 22-Dec-1848
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .

Cited by:
Cited – Bradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .

These lists may be incomplete.
Updated: 16 June 2021; Ref: scu.219911

Oaklion Properties Ltd v Denbighshire County Coucil (Compensation – Compulsory Purchase – Fire Damaged Amusement Arcade): UTLC 12 Mar 2021

COMPENSATION – Compulsory Purchase – fire damaged former amusement arcade with accommodation over – assumed planning permission – valuation method – residual valuation – comparable valuation – s.5 and s.14, Land Compensation Act 1961
[2021] UKUT 49 (LC)
Bailii
England and Wales

Updated: 16 June 2021; Ref: scu.662177

Alberti v Cadogan Holdings Ltd (Leasehold Enfranchisement – House): UTLC 9 Apr 2021

LEASEHOLD ENFRANCHISEMENT – HOUSE – preliminary issue – disregard of tenant’s improvements – reality principle – house originally divided into five flats – tenant converting back to single house – planning permission for conversions no longer available at valuation date – whether disregard of improvements requires consequential assumption that building cannot lawfully be used as a single house – s.9(1A)(d), Leasehold Reform Act 1967
[2021] UKUT 85 (LC)
Bailii
England and Wales

Updated: 16 June 2021; Ref: scu.662179

Nathwani and Another v Kivlehan and Others (Restrictive Covenants – Modification – Restricting Building To Single Storey Dwelling House): UTLC 22 Apr 2021

RESTRICTIVE COVENANTS – modification – covenants restricting building to single storey dwelling house – planning permissions for two/three storey modern house – whether covenants secure practical benefits of substantial value or advantage – s.84(1)(aa), Law of Property Act 1925 – application refused
[2021] UKUT 84 (LC)
Bailii
England and Wales

Updated: 15 June 2021; Ref: scu.662182

Land and Estate Developments Uk Ltd v Nottingham City Council (Compensation – Limitation): UTLC 24 Mar 2021

COMPENSATION – LIMITATION – compulsory purchase vesting date of 1 July 2014 – Notice of Reference received by the Tribunal at 5.08pm on 30 June 2020 – whether served within six year limitation period – whether Tribunal’s Rule relevant – held Notice received in time
[2021] UKUT 25 (LC)
Bailii
England and Wales

Updated: 15 June 2021; Ref: scu.662176

The Port of London Authority v Ashmore: CA 4 Feb 2010

The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to an area being the footprint of the boat.
Held: As matters had developed, it had become agreed that occupation by a boat might amount to adverse possession. Whether that would amount to sufficient in this case was for the court at first instance to decide. Case remitted.
Longmore, Richards LJJ, Sir John Chadwick
[2010] EWCA Civ 30, [2010] 1 All ER 1139, [2010] NPC 14
Bailii
England and Wales
Citing:
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Red House Farms (Thorndon) Ltd v Catchpole CA 1977
Cairns LJ said: ‘The authorities make it clear that what constitutes possession of any particular piece of land must depend upon the nature of the land and what it is capable of use for: see, for example, Tecbild Ltd v Chamberlain (1969) 20 P and CR . .
Appeal From – Port of London Authority v Ashmore ChD 8-May-2009
The defendant sought to assert adverse possession of land through the long time mooring of his boat at a wharf. . .
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 – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Denaby and Cadeby Main Collieries v Anson 1911
A right of public navigation includes the necessary incidents of such passage including the right to drop an anchor. In principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.396601

Hepworth Building Products v Coal Authority: CA 2 Jul 1999

An offer to settle, expressly open only until the first day of the hearing at the Lands Tribunal could have no significance in the context of a re-hearing ordered by the Court of Appeal some years later. The early offer including the limitation had not been revived, and had no continuing effect in costs.
Times 09-Jul-1999, Gazette 20-Oct-1999, [1999] EWCA Civ 1749
Lands Tribunal Rules 1996 (1996 No 1022)
England and Wales

Updated: 14 June 2021; Ref: scu.146664

Jones v Kernott: SC 9 Nov 2011

Unmarried Couple – Equal division displaced

The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She applied for an order under section 14 of the 1996 Act. The county court judge found that the initial presumption in favour of fifty fifty had been displaced, and set a share of 10% for K. The Court of appeal allowed K’s appeal.
Held: The appeal succeeded, and the decision of the judge at the County Court was restored.
‘The time has come to make it clear, in line with Stack v Dowden (see also Abbott v Abbott [2007] UKPC 53, [2007] 2 All ER 432), that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares. The presumption is that the parties intended a joint tenancy both in law and in equity. But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.’
Lord Walker and Lady Hale said: ‘the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests.
(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.
(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.
(3) Their common intention is to be deduced objectively from their conduct: ‘the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party’ (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69.
(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property’: Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In our judgment, ‘the whole course of dealing . . in relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.
(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).’
Lord Walker, Lady Hale, Lord Collins , Lord Kerr, Lord Wilson
[2011] UKSC 53, UKSC 2010/0130, [2011] 46 EG 104, [2011] 3 FCR 495, [2011] Fam Law 1338, [2012] WTLR 125, [2011] NPC 116, [2011] BPIR 1653, [2011] 3 WLR 1121, 14 ITELR 491
Bailii, SC Summary, SC, Bailii Summary
Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
At High Court – Jones v Kernott ChD 10-Jul-2009
The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
Cited – Walker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
Cited – Adekunle and Others v Ritchie Misc 17-Aug-2007
(Leeds County Court) An enfranchised freehold was in joint names because the elderly tenant could not obtain a mortgage on her own. . .
Cited – Lowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Abbott v Abbott PC 26-Jul-2007
(Antigua and Barbuda) The parties disputed the division of the family assets after a divorce. The family home was registered in the sole name of the husband. There being no provision for property adjustment, the court had to decide the division on . .
Cited – Oxley v Hiscock CA 6-May-2004
oxley_hiscockCA2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – In re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .

Cited by:
Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.448292

Jones v Kernott: ChD 10 Jul 2009

The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, and K 10%. K appealed.
Held: The appeal was dismissed.
Nicholas Strauss QC J
[2009] EWHC 1713 (Ch), [2009] 1 All ER 947, [2009] Fam Law 1043, [2010] 1 P and CR DG4, [2010] 1 FLR 38, [2009] BPIR 1380, [2009] WTLR 1771
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Cited by:
Appeal From – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
At High Court – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
At High Court – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.368638

Waldner v Parochial Church Council of Darby Green and Winchester Diocesan Board of Finance: CA 17 Jun 1999

The applicant sought leave to appeal out of time against the dismissal of his claim as an abuse of process, being an attempt to relitigate a lost case. He claimed to have had an interest in a house formerly occupied as a matrimonial property. The house had been purchased by the defendants. A land charge had been incorrectly registered.
Held: The land charge was not binding unless registered, even if the defendants had had knowledge of it, and the matrimonial court orders also prevented his application. Leave refused.
Lord Justice Otton, and Lord Justice Robert Walker
[1999] EWCA Civ 160
Land Charges Act 1972 4(8), Matrimonial Homes Act 1983 1
England and Wales

Updated: 09 June 2021; Ref: scu.146520

Alridge and Others v London Southend Airport Company Ltd (Compensation – Runway Extension At Southend Airport): UTLC 11 Mar 2021

COMPENSATION – LAND COMPENSATION ACT 1973 Part 1 – runway extension at Southend Airport – whether use of extension depreciated the value of 10 representative properties – physical factors – noise – change in number and type of commercial aircraft using airport – assessment of effect on value – treatment of intensification of use – compensation awarded
[2021] UKUT 8 (LC)
Bailii
England and Wales

Updated: 04 June 2021; Ref: scu.662167

Golf Cafe Bars v West Yorkshire Combined Authority and Another (Compensation – Costs – Compensation Cases Heard Under The Tribunals Written Representations Procedure): UTLC 9 Mar 2021

COMPENSATION – COSTS – compensation cases heard under the Tribunal’s Written Representations procedure – application fee and determination fee awarded to claimant – costs of the reference claimed by litigant in person – Litigants in Person (Costs and Expenses) Act 1975 – costs awarded based on rate in CPR Practice Direction 46
[2021] UKUT 48 (LC)
Bailii
England and Wales

Updated: 04 June 2021; Ref: scu.662170

Nationwide Anglia Building Society v Ahmed: CA 1995

The First Defendant agreed to purchase a business from the Second Defendant for andpound;160,000. andpound;80,000 was raised by way of a secured loan from the plaintiff and was paid to the Second Defendant. The balance of andpound;80,000 was left outstanding and secured by way of a second charge against the property. The arrangements for the sale and purchase of the business and the property were embodied in a contract. The agreement said that the Plaintiffs’ charge would rank before the Second Defendant’s. A Clause provided that the Second Defendant was to retain the use of the property until the whole of the principal money and. interest due under the agreement had been paid. The transfer and mortgage deed were co-dated with the contract. The First Defendant failed to pay both the Second Defendant, and also the mortgage. In possession proceedings the Second Defendant defended on the grounds that the Plaintiffs were not entitled to possession of the property, the Second Defendant’s overriding interest in the property taking priority over the first legal charge. It was argued that the Second Defendant had an unpaid vendor’s lien which had priority over the first charge.
Held: The submission failed. There was no vendor’s lien because the Second Defendant had received all he bargained for when he received the second charge, and the rights under the clause were a contractual licence which could not give rise to an overriding interest. Only proprietary interests can be overriding.
The submission also failed because of the decision in Cann.
Aldous LJ continued: ‘The submission also fails because the charges, the agreement and the transfer were all signed on the same day namely June 1. Thus, his right to occupation under clause 6 did not accrue prior to the creation of the respondent’s charge. In Abbey National Buildins Society v. Cann the House of Lords decided that the relevant date for determining the existence of an overriding interest was the date of registration of the estate affected. In this case that date was August 3, 1990. They went on to hold that to acquire an overriding interest against a chargee by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal estate. In this case that was June 1, 1990. They concluded that when a purchaser relied on a building society, such as the respondent, to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of charge.
The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in the appellant which was free of the respondent’s charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act even if the right was a proprietary right.
Mr Collins submitted that that conclusion ignored the reality of the position and that at all times the appellant was in occupation. However that submission ignores the reality of the legal position. The appellant gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to the respondent’s charge.’
Aldous LJ
(1995) 70 P and CR 381
England and Wales
Cited by:
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: 02 June 2021; Ref: scu.450470

Ratcliff v McConnell and others: CA 7 Nov 1997

The claimant, a nineteen year old student climbed into a college property in the early hours of the morning, and then took a running dive into the shallow end of a swimming pool, suffering severe injuries. He was accompanied by friends and had been drinking, though he was not drunk.
Held: The Act did not include the duty to safeguard the claimant from the consequences of his own folly.
Stuart-Smith LJ said: ‘It is unfortunate that a number of high-spirited young men will take serious risks with their own safety and do things that they know are forbidden, Often they are disinhibited by drink and the encouragement of friends. It is the danger and the fact that it is forbidden that provides the thrill. But if the risk materialises they cannot blame others for their rashness.’
Stuart-Smith LJ
[1997] EWCA Civ 2679, [1999] 1 WLR 670
Bailii
Occupier’s Liability Act 1984
England and Wales
Citing:
See also – Ratcliff v G R McConnell and E W Jones CA 30-Nov-1998
A trespasser having climbed into grounds at night and dived into a swimming pool without knowing the depth accepted responsibility for his own acts. The dangers of diving into shallow water were known to adults and there was no need for a warning. . .

Cited by:
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal . .
See also – Ratcliff v G R McConnell and E W Jones CA 30-Nov-1998
A trespasser having climbed into grounds at night and dived into a swimming pool without knowing the depth accepted responsibility for his own acts. The dangers of diving into shallow water were known to adults and there was no need for a warning. . .
Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
Cited – Cockbill v Riley QBD 22-Mar-2013
cockbill_rileyQBD2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .

These lists may be incomplete.
Updated: 24 April 2021; Ref: scu.143078

Hypo-Mortgage Services Limited v Robinson, Robinson: CA 17 Nov 1996

The court refused parents leave to appeal against a mortgage possession order, rejecting their argument that children living with them had a beneficial interest in the mortgaged premises and were thus ‘in actual occupation’ so as to have overriding interests under section 70(1)(g) of the Land Registration Act 1925. A child cannot be in occupation of land so as to constitute an overriding interest.
Lord Justice Nourse said: ‘I regard it as axiomatic that minor children of the legal owner are not in actual occupation within s 70(1)(g)
The minor children are there because their parent is there. They have no right of occupation of their own.
They are only there as shadows of their parent.’ and ‘No inquiry can be made of minor children or consent obtained from them in the manner contemplated by [s 70(1)(g)], especially when they are, as here, of tender years at the material date. If the second defendant was right, lenders would never be protected. Their security could always be frustrated by simple devices.’
Nourse LJ
Times 02-Jan-1997, [1996] EWCA Civ 899
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Cited by:
Cited – Royal Borough of Kingston Upon Thames v Wendy Prince Marie Emma Prince (a Minor) (Acting By Her Guardian Ad Litem Wendy Prince) CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.81580

Hopkins, Re: Land at 14 Mead Close Andover: LT 7 Jul 2008

LT RESTRICTIVE COVENANT – discharge or modification – dwellinghouse – covenant not to erect more than one dwellinghouse and garage – application to modify or discharge to permit retention of existing house and erection of four two-bedroom flats on rear garden – whether proposed use reasonable – whether practical benefits secured by restriction of substantial value or advantage – application refused – Law of Property Act 1925, s84(1)(aa).
[2008] EWLands LP – 89 – 2006
Bailii
Law of Property Act 1925 84(1)(aa)
England and Wales

Updated: 26 March 2021; Ref: scu.278607

Welford and Others v Edf Energy Networks (Lpn) Plc: LT 25 Nov 2008

LT COMPENSATION – electricity – underground cables – land with planning permission for waste transfer station – statutory wayleaves for retention – disturbance claim for loss of profits -how lost profits to be assessed – interest on compensation – basis for this – delay – simple or compound interest
[2008] EWLands LCA – 30 – 2004
Bailii
England and Wales

Updated: 26 March 2021; Ref: scu.278640

Edith Alice Billington (By Jack Johnson Billington Her Next Friend) Thomas Joseph Billington Edith Annie Warburton v Joan Blackshaw: CA 16 Dec 1997

The defendant sought leave to add the legal professionals acting for the estate of the deceased as defendants so that she could allege conspiracy.
Held: This was the twelfth or so time the court had been asked to consider this or a similar request. Each time it had been rejected as an abuse. Leave to appeal refused.
[1997] EWCA Civ 3004
Bailii

Updated: 30 December 2020; Ref: scu.143403

Clarke v Ramuz: CA 1891

The vendor was accused of failing to prevent a trespasser removing soil from land between exchange and completion. Lord Coleridge CJ said: ‘ in the case of a contract for the sale and purchase of land, although the legal property does not pass until the execution of the conveyance, during the interval prior to completion the vendor in possession is a trustee for the purchaser, and as such has duties to perform towards him, not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and, so far as may be, as it was when the contract was made.’
Lord Coleridge CJ
[1891] 2 QB 456
England and Wales
Cited by:

  • Cited – Englewood Properties Limited v Shailesh Patel, Cornberry Limited 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 . .
    [2005] EWHC 188 (Ch), Times 09-Mar-05, [2005] 3 All ER 307, [2005] 1 WLR 1961

These lists may be incomplete.
Updated: 10 December 2020; Ref: scu.223739

Mansfield v Walker’s Trustees; Inglis v Mansfield: 1833

The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was whether the trustee was bound by the unfulfilled, and latent, obligation to grant a bond over the remainder.
Held: When a creditor attaches the estate of the debtor by an adjudication tantum et tale as it stands vested in him, and takes the heritable estate in which the debtor was infeft, subject to no limitation or burden which does not appear on the face of the records, and his moveable estate under such conditions only as qualify his real right, but free from all his personal liabilities. ‘It is a rule established with us, beyond all memory, that there are no equities in competitions among creditors. This principle was adopted, and carried to its fullest extent, in the case of the Duke of Norfolk in 1752 . . . It has been held, that vigilantibus non dormientibus jura subveniunt; and although no one ought to become locupletior aliena jactura, yet in damno vitando, every one is entitled to avail himself of the blunders of those whose interests are opposed to his. However clear and honest the intentions of parties may have been, yet, if the writings used are liable to objection in point of form or solemnity, and still more, if, as in this case, they are defective in the substantial parts, they are in a competition held as inoperative and null . . . So, after a competition has begun, a party conscious of a defect in his own right may, by any lawful means, but always without the aid of the bankrupt, direct or indirect, correct the defect pendente lite, so as to be preferred to his adversary, although formerly in a better situation than himself. On looking into the books of authority and the decisions of the court, to be found under the titles of Competition, Execution and Writ, it will be seen that the most minute and critical objections, in point of external formality, or arising from the want of proper and technical words in the instrument, have been sustained. In such circumstances, and notwithstanding the most satisfactory evidence of intention to give a right, the existence of another deed, followed with infeftment, before the former one has been completed, must create an undoubted preference.’
References: (1833) 11 S 813, (1835) 1 S and Macl 203
Judges: Lord Corehouse
Jurisdiction: Scotland
This case is cited by:

  • 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 . .
    (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194227

Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter: 1933

The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
References: [1933] Ch 611
This case is cited by:

  • Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 1980
    Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
    Held: section 78 made the covenant by the purchaser binding on his successors also. The section . .
    ([1980] 1 WLR 594, [1980] 1 All ER 371, , [1979] EWCA Civ 3)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.248260

Young v Leith: HL 1847

The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid seisin is to divest the granter of the heritable right, and to invest the grantee . . It is of the very essence of a real right, not only to found a preference against a less perfect right, but to prevent any third party from acquiring a perfect right to the lands, which most certainly an unregistered seisin does not.’ and ‘In the same way, and on the same principle, the holder of a heritable bond, followed only by unregistered seisin, would fail in claiming a preference over personal creditors, because such creditors have the means of obtaining by adjudication a perfect right to the lands of the debtor.’
References: (1847) 9 D 932
Judges: Lord Fullerton
Jurisdiction: Scotland
This case cites:

  • Appeal from – Young v Leith IHCS 1844
    Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be . .
    ((1848) 2 Ross’s LC 81, (1844) 6 D 370)

This case is cited by:

  • Appealed to – Young v Leith IHCS 1844
    Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be . .
    ((1848) 2 Ross’s LC 81, (1844) 6 D 370)
  • 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 . .
    (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194222

Earl of Fyfe v Duff: HL 1862

The Earl sought a declarator to allow the sale of land. Others said it was subject to rights of ntail. The court referred to an uninfeft proprietor as a ‘personal fee’. Voluntary transmission of feudal subjects is effected by a dispositive act followed by tradition of the subject to the transferee. ‘The legal effect of such a disposition, even before it is followed by tradition of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; and to settle the estate by mortis causa dispositions and deeds of entail. The right so created is transmissible from one person to another by voluntary disposition; and on the death of any person, in whom it is vested, it is transmissible to his heir by general service; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee – a denomination importing not that the subject of it is moveable, for it is truly heritable, but that it is not feudal, and indicating at the same time that, even while not followed by solemn tradition or infeftment, the right is still sua natura a right of fee. Secondly, such dispositive act, although it operates as a de praesenti alienation, and not merely as an obligation to alienate, does farther by implication impose upon the disponer an obligation of a different kind – viz a consequent obligation (as Lord Stair calls it) – as to delivery or tradition of the subject disponed.’
References: (1862) 24 D 936, (1863) 4 Macq 469
Judges: Lord Westbury LC
Jurisdiction: Scotland
This case cites:

  • Appeal from – Earl of Fyfe v Duff IHCS 1861
    The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
    ((1861) 23 D 657)

This case is cited by:

  • Appealed to – Earl of Fyfe v Duff IHCS 1861
    The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
    ((1861) 23 D 657)
  • 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 . .
    (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194219

Steadman v Steadman: HL 1976

A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. There is no general rule against the payment of a sum of money constituting an act of part performance for the purposes of s 40. It is necessary to look at the surrounding circumstances, including payments of money, to see if they pointed to some oral contract consistent with the alleged contract.
Lord Reid said: ‘This matter has a very long history. Section 40 replaced a part of section 4 of the Statute of Frauds 1677 (29 Car. 2 c. 3), and very soon after the passing of that Act authorities on this matter began to accumulate. It is now very difficult to find from them any clear guidance of any general application. But it is not difficult to see at least one principle behind them. If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement is unenforceable. Using fraud in its other and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the statute to be made an instrument of fraud . . It must be remembered that this legislation did not and does not make oral contracts relating to land void; it only makes them unenforceable. And the statutory provision must be pleaded; otherwise the court does not apply it. So it is in keeping with equitable principles that in proper circumstances a person will not be allowed ‘fraudulently’ to take advantage of a defence of this kind. There is nothing about part performance in the Statute of Frauds. It is an invention of the Court of Chancery and in deciding any case not clearly covered by authority I think that the equitable nature of the remedy must be kept in mind.’
References: [1976] AC 536
Judges: Lord Reid
Statutes: Law of Property Act 1925 40, Statute of Frauds 1677 4
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Yaxley v Gotts and Another CA 24-Jun-1999
    Oral Agreement Creating Proprietory Estoppel
    The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
    (Gazette 14-Jul-99, Times 08-Jul-99, , [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, , [1999] EWCA Civ 3006, [2000] 1 All ER 711)
  • Cited – Inglorest Investments Ltd v Robert Campbell and Another CA 2-Apr-2004
    The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .
    ([2004] EWCA Civ 408, )
  • Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
    Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
    (, [2003] UKHL 17, Times 04-Apr-03, , [2003] 2 AC 541, [2003] 2 WLR 1060, [2003] 1 CLC 1003, [2003] 2 All ER (Comm) 331, [2003] 2 All ER 615, [2003] BLR 207, 88 Con LR 208)
  • Cited – Orton v Collins and others ChD 23-Apr-2007
    The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
    Held: The agreement was enforceable. The Civil . .
    (, [2007] EWHC 803 (Ch), [2007] 3 All ER 863, [2007] 1 WLR 2953)
  • Cited – In Re Alton Corporation 1985
    Sir Robert Megarry V-C, said in relation to a loan accompanied by the deposit of title deeds: ‘I have to remember that the basis of an equitable mortgage is the making of an agreement to create a mortgage, with the deposit of the land certificate . .
    ([1985] BCLC 27)
  • Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
    The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
    Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
    (Times 13-Feb-96, [1997] Ch 107, , [1996] EWCA Civ 1308, [1996] 3 WLR 372, [1996] 3 All ER 215)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193604

Hampshire County Council v Milburn: HL 1991

The 1965 Act ‘was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the establishment and implementation of schemes of management and improvement. But there can be no doubt that further steps were intended to implement the recommendations of the Royal Commission and no doubt that such steps have become more, and not less, desirable.’
No new mesne Lordships can be created after 1290 in consequence of the prohibition on subinfeudation in s.1 of Quia Emptore
References: [1991] 1 AC 325
Judges: Lord Templeman
Statutes: Commons Registration Act 1965
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
    Land had been registered in part as a common. The council appealed.
    Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
    ([2004] EWHC 12 (Ch), , Times 30-Jan-04, [2004] 2 WLR 1291, [2004] Ch 253)
  • Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
    Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
    (, [2006] UKHL 25, Times 31-May-06, Gazette 08-Jun-06, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817)
  • Cited – Walker and Another v Burton and Another CA 14-Oct-2013
    The Burtons had purchased the former Hall of the village of Ireby, and been registered as proprietors of the Lordhsip of the Manor. The villagers had successfully challenged the registration. The Court now considered the circumstances in which the . .
    (, [2013] EWCA Civ 1228, , [2013] EWLandRA 2007 – 1124)
  • Cited – Littlejohns and Another v Devon County Council and Another CA 6-May-2016
    Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .
    (, [2016] EWCA Civ 446, [2016] WLR(D) 242, )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192093

Jones v Pritchard: ChD 1908

The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to keep the driveway in repair.
References: [1908] 1 Ch 630
Judges: Parker J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Gardner and Gardner v Davis and others CA 15-Jul-1998
    Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
    Held: The drainage easement was to be read according to . .
    (Gazette 22-Jul-98, , [1998] EWCA Civ 1213)
  • Cited – Westminster (Duke of) and others v Guild CA 30-Mar-1983
    The landlord brought an action for non-payment of rent. The tenant sought to set off a failure by the landlord to repair the building of which his flat was part and which failure had caused him loss. The landlord said that it had no express duty to . .
    (, [1983] EWCA Civ 1, [1984] 3 WLR 630, [1985] 1 QB 688, [1983] 48 PandCR 42, [1983] 267 EG 762, [1984] 3 All ER 144)
  • Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
    The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
    Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
    (, [2007] UKHL 42, [2007] 1 WLR 2620)
  • Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
    Can a recreational purpose underlie an easement
    The court considered the validity of easements of recreational facilities.
    Held: Sir Geoffrey Vos said: ‘the requirement that an easement must be a ‘right of utility and benefit’ is the crucial requirement. The essence of an easement is to . .
    (, [2017] EWCA Civ 238)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.185407

M’Adam v M’Adam: IHCS 1879

The house referred to ‘the owner of a personal right to land’ to describe the position of an uninfeft proprietor.
References: (1879) 6 R 1256
Judges: Lord President Inglis
Jurisdiction: Scotland
This case is cited by:

  • 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 . .
    (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194218

Britan v Rossiter: 1879

A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable.
References: (1879) 11 QBD 123
Statutes: Statute of Frauds 1677 3
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Yaxley v Gotts and Another CA 24-Jun-1999
    Oral Agreement Creating Proprietory Estoppel
    The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
    (Gazette 14-Jul-99, Times 08-Jul-99, , [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, , [1999] EWCA Civ 3006, [2000] 1 All ER 711)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193606

West Bank Estates Ltd v Arthur: PC 1967

(From Federal Supreme Court of the West Indies) A claim was made for possessory title to a strip of land, based upon acts of cultivation, the cutting of timber, wood and grass, fishing and growing rice. The trial judge disallowed the claim to a possessory title. The Federal Supreme Court reversed him. They took the view that the respondents had made what was, for persons of their means and class, normal user of the land.
Held: The precise nature of the acts and rights required to amount to possession varies with the nature of the land and all the circumstances. Lord Wilberforce said: ‘The learned judge . . applied his mind correctly to the question whether the respondents had proved ‘sole and undisturbed possession user and enjoyment’ of the disputed strip. As the Federal Supreme Court itself stated, these words convey the same meaning as possession to the exclusion of the true owner. The learned judge gave recognition to the fact that what constitutes possession, adequate to establish a prescriptive claim, may depend upon the physical characteristics of the land. On the other hand, he was, in their Lordships’ view, correct in regarding such acts as cutting timber and grass from time to time as not sufficient to prove the sole possession which is required . . The respondents had, in [the view of the Federal Supreme Court], proved that they had made what was for persons of their means and class normal user of the land . . This does not appear to be a correct approach to the evidence. Admitting the utility of the respondents’ operations, and that they did what was normal for small peasant farmers, this still does not establish a sufficient degree of sole possession and user to satisfy the Ordinance, or carry the matter beyond a user which remains consistent with the possession of the true owner.’
References: [1967] AC 665
Judges: Lord Wilberforce
Jurisdiction: Commonwealth
This case is cited by:

  • Cited – Cobham v Frett PC 18-Dec-2000 (Times 24-Jan-01, , , , [2000] UKPC 49, [2001] 1 WLR 1775)
    (British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
  • Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010 (, [2010] EWCA Civ 817, [2010] WLR (D) 195, , [2011] 1 WLR 504)
    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 . .

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.179830

Abbahall Ltd v Smee: CA 19 Dec 2002

The parties were respective owners of interests in flying freehold flats. An order had been made allowing access to make repairs to the roof, and the claimant now appealed an order requiring it to pay a greater part of the costs because of the other owner’s impecuniosity.
Held: The roof served to protect both parties, and it was artificial to distinguish as to benefit, and in principle the burden should be shared equally. The respondent’s duty was to make a contribution to the cost of repairs. Those responsibilities could not vary according to the relative financial positions of the owners from time to time. Appeal allowed.
References: Times 28-Dec-2002, Gazette 13-Mar-2003, [2002] EWCA Civ 1831, [2003] 2 EG 103, [2003] 1 All ER 465, [2003] 28 EG 114, [2003] 1 WLR 1472, [2003] 2 EGLR 66, [2003] HLR 40
Links: Bailii
Judges: Chadwick LJ, Munby J
Jurisdiction: England and Wales

Last Update: 25 October 2020; Ref: scu.420970

Plimley v Foroushani (As Administrator of Simin Golestani-Araghi, Deceased: FTTPC 4 Feb 2019

Application to enter a restriction against the title of a property bought under the right to buy provisions by the Applicant’s former partner, now deceased. The property was bought in 2004 and the registered proprietor died 2017. The Respondent was her son. It appeared from the solicitors’ purchase file that it was always intended that the deceased) would be the sole legal and beneficial owner. Applicant did apply for a joint mortgage with the deceased, but in the event the mortgage was executed by her only. There was no satisfactory evidence of any payments made by the Applicant referable to the purchase. His application was dismissed.
References: [2019] UKFTT 164 (PC)
Links: Bailii
Judges: Ms Ann McAllister
Jurisdiction: England and Wales

Last Update: 24 October 2020; Ref: scu.644619

Wigginton and Milner Ltd v Winster Engineering Ltd: CA 7 Dec 1977

Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not overrule the description in the parcels, but the indications it provided were properly used to establish what land had been intended to be conveyed. In this case the land and parcels description was sufficient to say that the land had not been intended to be included in the relevant conveyance: ‘providing a plan did not conflict with explicit descriptions in the parcels, the fact that it was said to be ‘for identification only’ did not exclude it from consideration in order to solve problems left undecided by the explicit descriptions in the parcels.’
In fixing a boundary line, the first recourse is to the description of the property in the relevant conveyance. If the relevant conveyance, in normal circumstances the parcels clause, contains a verbal description of the property in question, sufficient to enable the disputed line to be ascertained; there is no need to refer to the conveyance plan. If, however, no definite conclusion can be reached from the parts or the whole of the description, the recitals and other parts of the deed can be considered for expressions of the intention of the parties. If these cannot be found, extrinsic evidence can, in some few cases, be used, for example to show to what property the description applies.
Buckley LJ explained Neilson v Poole: ‘There, Brooklands South is a specific description of a piece of land, the boundaries of which could be established by extrinsic evidence. If the plan was not to control the parcels, the plan could not have any relation to the boundaries of what was known as Brooklands South, those being matters which were implicit in the explicit description of the parcel concerned as ‘what was known as Brooklands South’; and the observation by Megarry J that words such as ‘for the purposes of identification only seemed to him to confine the use of the plan to ascertaining where the land is situated, was I think an obiter observation on his part and not part of his decision at all, for he was not concerned merely with that phrase but with its use in conjunction with ‘more particularly delineated’.’
Bridge LJ said: ‘I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan ‘for the purposes of identification only’ is the sole means by which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words ‘for the purpose of identification only’ should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.’
‘in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being ‘for identification purposes only’ it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of the parcel’.
References: [1978] 1 WLR 1462
Links: lip
Judges: Buckley and Bridge LJJ and Sir David Cairns, Megarry J
Jurisdiction: England and Wales
This case cites:

  • Explained – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
    The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .

This case is cited by:

  • Cited – Yui Tong Man v Mahmood and Another CA 13-Dec-1996 ([1996] EWCA Civ 1218)
    Application for leave to appeal. The parties occupied adjoining premises under leases. The defendant sought to appeal an oder that he remove a refrigeration plant erected behind his premises, but on the roof of the other premises.
    Held: There . .
  • Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
    The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
    Held: In the circumstances the plan would . .
  • Cited – Sefton v Halliwell CA 2-May-2007 (, [2007] EWCA Civ 473)
    Boundary dispute. . .
  • Cited – Stafford and Another v Lee and Another CA 10-Nov-1992 (Gazette 09-Dec-92, (1993) 65 P and CR 172, Times 16-Nov-92, , [1992] EWCA Civ 17, [1992] EG 136 (CS), [1992] NPC 142)
    The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties . .
  • Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
    In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
    Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
  • Cited – Taylor v Lambert and Another CA 18-Jan-2012 (, [2012] EWCA Civ 3)
    The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .
  • Cited – Paton and Another v Todd ChD 11-May-2012 (, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
    Held: The claimant’s . .
  • Cited – Paton and Another v Todd ChD 11-May-2012 (, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
    Held: The claimant’s . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.177494

Aldred’s Case: 1619

An action would lie where a pig-stye was erected so close to the plaintiff’s house as to corrupt the air in the house, and also and similarly for a lime-kiln with smoke, or where filth from a dye house runs into a fish pond. Where the plaintiff claims that an easement has been acquired by prescription, the defendant cannot set up another easement to destroy that easement. Though an action will lie for obstruction of light, it will not for an obstruction of a prospect: ‘The law does not give an action for such things of delight.’
References: (1619) 9 Co Rep 57 b, (1619) 77 ER 816
Jurisdiction: England and Wales
This case cites:

  • Cited – Bland v Moseley 1587 ((1587),
    The court distinguished the elements of an easement of light and an easement of air. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour’s land. . .

This case is cited by:

  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    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 – Prince Albert v Strange ChD 8-Feb-1849 ((1849) 1 H and Tw 1, 2 De G and SM 293, (1849) 1 Mac and G 25, , [1849] EWHC Ch J20, [1849] EngR 255, , (1849) 41 ER 1171, [1849] EngR 261, , (1849) 47 ER 1302, (1849) 2 De Gex and Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195584

Horn and Another v Phillips and Another: CA 18 Dec 2003

In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance.
References: [2003] EWCA Civ 1877
Links: Bailii
Jurisdiction: England and Wales
This case cites:

  • Cited – Scarfe v Adams CA 1981 ([1981] 1 All ER 843)
    Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .

This case is cited by:

  • Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
    In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
    Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
  • Cited – Taylor v Lambert and Another CA 18-Jan-2012 (, [2012] EWCA Civ 3)
    The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.242462

Bland v Moseley: 1587

The court distinguished the elements of an easement of light and an easement of air. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour’s land.
References: (1587)
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Aldred’s Case 1619 ((1619) 9 Co Rep 57 b, (1619) 77 ER 816)
    An action would lie where a pig-stye was erected so close to the plaintiff’s house as to corrupt the air in the house, and also and similarly for a lime-kiln with smoke, or where filth from a dye house runs into a fish pond. Where the plaintiff . .
  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    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 – Chastey v Ackland CA 1895 ([1895] 2 Ch 389, [1895] 64 L J QB 523, [1895] 72 LT 845, [1895] 43 WR 627, [1895] 11 TLR 460, [1895] 39 Sol Jo 582)
    The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195585

Grigsby v Melville: CA 6 Jul 1973

The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the room above. The plainttiff sought an injunction to restrain the seller from using the cellar.
Held: The seller’s appeal failed. The term dwellinghouse was to be interpreted to include the cellar. There was no ambiguity in the description so as would allow the court to look to any surrounding circumstances to construe the deed. Had he intended to exclude the cellar, it would have been easy to do so. This was not an action for rectification.
References: [1973] 3 All ER 455
Judges: Russell LJ, Stamp LJ, James Lj
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Grigsby v Melville and Another ChD 1972 ([1972] 1 WLR 1355, [1973] 1 All ER 385)
    A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
  • Cited – Corbett v Hill 1870 ((1870) LR 9 Eq 671, (1870) 39 CJCh 547, (1870) 2 LT 263, (1870) 7 Digest (Repl) 267)
    The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns ‘everything up to the sky’. . .
  • Cited – Smout v Farquharson CA 12-Dec-1972 (Unreported, 12 December 1972)
    The court considered a case where there was difficulty in deriving the horizontal boundaries of a property. . .
  • Cited – Truckell v Stock CA 1957 ([1957] 1 All ER 74, [1957] 1 WLR 161)
    The court considered the effect of a conveyance where an inspection of the ground revealed a mistake in the description of the land. . .
  • Cited – Laybourn v Gridley 1892 ([1892] 2 Ch 53, [1892] 61 LJCh 352, [1892] 7 Digest (Repl) 267)
    Part of a room protruding into the property conveyed avbove ground level was included in the conveyance. . .
  • Cited – Mitchell v Mosley CA 1914 ([1914] 1 Ch 438, [1914] LJCh 438, [1914] 109 LT 648)
    Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
    Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well . .

This case is cited by:

  • Cited – Scarfe v Adams CA 1981 ([1981] 1 All ER 843)
    Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
  • Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
    A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
    The . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.242460

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 estate of the person sequestrated, and vested those assets in his trustee for the benefit of the sequestrator. The purchaser who failed to register his interest lost it. ‘In the present case the respondent has done nothing more than take advantage of the mistake or error of his rivals, the appellants, in failing to get off their mark and record the disposition from Mrs Burnett promptly. Even once their agents had become aware that her estate had been sequestrated and that the respondent had been appointed as permanent trustee, for whatever reason, they failed to act. In retrospect at least, that was a mistake, since it allowed the respondent to record his notice of title before the appellants. As the authorities show, even although the respondent was well aware that the appellants held a disposition from Mrs Burnett, he was fully entitled to take advantage of their mistake by recording the notice of title and so completing the diligence by acquiring the real right in the subjects for the creditors.’
References: 2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, [2004] UKHL 8, Times 08-Mar-2004, [2004] 11 EGCS 139
Links: House of Lords, Bailii
Judges: Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry
Statutes: Bankruptcy (Scotland) Act 1985 31(1), Abolition of Feudal Tenure etc (Scotland) Act 2000, Conveyancing (Scotland) Act 1924 5
Jurisdiction: Scotland
This case cites:

  • Cited – Heritable Reversionary Company Ltd v Millar HL 9-Aug-1892 ((1892) 19 R (HL) 43, , [1892] AC 598, [1892] UKHL 2)
    Where the bankrupt had been the trustee of property, the bare legal title to that property did not form part of ‘the whole property of the debtor’ and so did not vest in the permanent trustee in bankruptcy under the section. ‘My Lords, if this House . .
  • Cited – Allan’s Trustes v Lord Advocate HL 1971 (1971 SC (HL) 45, , [1970] UKHL 7, [1970] TR 417, 1971 SLT 62)
    The House set out the requirements for a declaration of trust. The truster must have an intention to make himself trustee of his own property and must also do something equivalent to delivery or transfer of the trust fund. The origin of trusts in . .
  • Distinguished – Sharp v Thomson HL 1997 (1997 SC (HL) 66, , [1997] UKHL 60, [1998] BCC 115, 1997 SC (HL) 66, 1997 SCLR 328, 1997 GWD 9-364, [1997] 1 BCLC 603, 1997 SLT 636)
    A floating charge was given over the whole of a company’s property which might from time to time be ‘comprised in our property and undertaking’. The charge terms echoed the section which allows a company to create a charge ‘over all or any part of . .
  • Cited – Rodger (Builders) Ltd v Fawdry 1950 (1950 SC 483)
    Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are . .
  • Cited – Bell v Gartshore IHCS 1737 (2 Ross’s LC 410, (1737) M 2848;)
    The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights. . .
  • Cited – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .
  • Cited – Young v Leith IHCS 1844 ((1848) 2 Ross’s LC 81, (1844) 6 D 370)
    Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be . .
  • Cited – Earl of Fyfe v Duff IHCS 1861 ((1861) 23 D 657)
    The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
  • Cited – Earl of Fyfe v Duff HL 1862 ((1862) 24 D 936, (1863) 4 Macq 469)
    The Earl sought a declarator to allow the sale of land. Others said it was subject to rights of ntail. The court referred to an uninfeft proprietor as a ‘personal fee’. Voluntary transmission of feudal subjects is effected by a dispositive act . .
  • Cited – M’Adam v M’Adam IHCS 1879 ((1879) 6 R 1256)
    The house referred to ‘the owner of a personal right to land’ to describe the position of an uninfeft proprietor. . .
  • Cited – Stewart v Jarvie IHCS 1938 (1938 SC 309)
    The permanent trustee acts under the statute for each and every one of the creditors of the sequestered individual, not for himself as an individual. . .
  • Cited – Young v Leith HL 1847 ((1847) 9 D 932)
    The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .
  • Cited – Orr v Mitchell 1893 ((1893) 20 R (HL) 27)
    Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the . .
  • Cited – Henderson v Dawson 1895 ((1895) 22 R 895)
    An inhibition which is laid on after the missives have been concluded but before the date of the disposition, apparently striking at the sale, may cause difficulty in a question with a subsequent purchaser . .
  • Cited – Dryburgh v Gordon 1896 ((1896) 24 R 1)
    A search against land which produces an adverse entry ex facie of the record, even if it relates to an inhibition which was laid on after the missives were entered into, is not a clear search. . .
  • Cited – Bell of Blackwoodhouse v Gartshore 1737 (1737 M 2848, 5 Br Suppl 198, 2 Ross’s LC 410)
    Alexander Oliphant bought a tenement in Kelso which was being sold by the adjudging creditors of William Chatto. Without becoming infeft, in 1730 Oliphant disponed the decree of sale to Chatto’s son, who also was not infeft. Two years later Chatto . .
  • Cited – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .
  • Cited – Wylie v Duncan 1803 (1803 M 10269, 3 Ross’s LC 134)
    Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The . .
  • Cited – Mansfield v Walker’s Trustees; Inglis v Mansfield 1833 ((1833) 11 S 813, (1835) 1 S and Macl 203)
    The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was . .
  • Cited – Buchan v Farqhuarson 1797 (1797 M 2905)
    . .
  • Cited – Colquhouns’ Trustee v Campbell’s Trustees 1902 ((1902) 4 F 739)
    Law agents had failed to record two bonds and dispositions granted by the owner of a property in Glasgow in security of loans which their clients had made to him. They then obtained and recorded an ex facie absolute disposition of the same subjects . .
  • Cited – Forbes’s Trustees v Macleod 1898 ((1898) 25 R 1012)
    The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick’s title to the subjects . .
  • Cited – Bank of Scotland v Hutchison Main (in liquidation) HL 6-Feb-1914 (1914 SC (HL) 1, , [1914] UKHL 3, [1914] AC 311, (1914) 1 SLT 111)
    A mere declaration of intent is not sufficient to create a trust, as there must be a clear and identifiable declaration of trust – an express declaration. . .
  • Cited – Gibson v Hunter Home Designs Limited SCS 7-Nov-1975 (1976 SC 23, , [1975] ScotCS CSIH – 1)
    A disposition had been executed but not delivered.
    Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. . .
  • Cited – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
    A debtor had acquired the land by fraud.
    Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . .
  • Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
    . .
  • Cited – In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949 ([1949] Ch 78)
    The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
    Held: Equity will not compel an imperfect gift to be . .
  • Cited – Russell v Ross’s Creditors; Pierse v Ross 31-Jan-1792 (31 January 1792 FC, 1792 M 10300, 3 Ross’s LC 177)
    . .
  • Cited – Black and Grant v Gordon HL 1794 ((1794) 3 Pat 317)
    An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants’ argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines. . .
  • Cited – Thomson v Douglas, Heron and Co 15-Nov-1786 (15 November 1786 FC, 1786 M 10229)
    Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to . .
  • Cited – Buchan v Farquharson 24-May-1797 (24 May 1797 FC, 1797 M 2905, 3 Ross’s LC 137)
    On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon’s estate did not vest in the trustee in bankruptcy . .
  • Cited – Cormack v Anderson 1829 ((1829) 7 S 868)
    . .
  • Cited – Tod’s Trusteess v Wilson 1869 ((1869 ) 7 M 1100)
    A trustee’s right and the right of the purchaser, heritable creditor or assignee were ‘simply two independent rights running a race against each other’ . .
  • Cited – Lord Melville v Paterson 1842 ((1842) 4 D 1311)
    A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in . .
  • Cited – Alex Brewster and Sons v Frank Mitchell Caughey and others SCS 2-May-2002 (, , [2002] ScotCS 123, 2002 GWD 15-506)
    If a purchaser becomes aware ‘that there may be a prior purchaser in the same queue for Register House he must ask the latter if he be such a purchaser and in the event of a positive, correct answer yield place to him’ . .
  • Appeal from – Michael James Meston Reid (Permanent Trustee on the Estates of Carlene Rose Burnett) v Harvey Leighton Grainger and Moira Elizabeth Grainger SCS 15-May-2002 (,
    . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194162

Gibson v Hunter Home Designs Limited: SCS 7 Nov 1975

A disposition had been executed but not delivered.
Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. There was no evidence of the constitution of a trust and that it was impossible to entertain the suggestion that as a result of the purchaser’s entry to the subjects and payment of the price a trust in his favour had come into existence. ‘In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition. On delivery of the disposition the purchaser becomes vested in a personal right to the subjects in question and his acquisition of a real right to the subjects is dependent upon recording the disposition in the appropriate Register of Sasines. Putting the matter in another way the seller of subjects under missives is not, in a question with the purchaser, divested of any part of his right of property in the subjects of sale until, in implement of his contractual obligation to do so, he delivers to the purchaser the appropriate disposition.’
References: 1976 SC 23, [1975] ScotCS CSIH – 1
Links: Bailii
Judges: Lord President Emslie
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 – Sharp and Others v Woolwich Building Society HL 6-Feb-1997 (Times 26-Mar-97, , , [1997] UKHL 8)
    The House was asked: what is meant by the word property in a floating charge and in section 53(7) of the 1986 Act which provides for the effect of the appointment of a receiver by the holder of such a charge in the following terms: ‘(7) On the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194234

Attorney-General v Doughty: 1752

As to any right of prospect, a building erected so as to spoil a view cannot at common law be a nuisance for that reason.
Lord Hardwicke LC said: ‘I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .’
References: (1752) 2 Ves Sen 453, [1752] 28 ER 290
Judges: Lord Hardwicke LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195583

Cormack v Anderson: 1829

References: (1829) 7 S 868
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194242

Thomson v Douglas, Heron and Co: 15 Nov 1786

Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to borrow money and granted a heritable security in favour of Douglas, Heron and Co. Other creditors adjudged the property. The court held that the allegations of fraud on the part of the disponee were irrelevant against the defenders’ heritable securities but that they were relevant as to the creditors who had adjudged the property.
Held: It had been found in decisions, which for the stability of the law ought not to be departed from, that adjudgers must take the right of their debtor tantum et tale as it was in his person.
References: 15 November 1786 FC, 1786 M 10229
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194240

Mitchells v Ferguson: 1781

In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson would grant him a heritable bond or a disposition in security. When she failed to do so, Ferguson raised proceedings for implement of this obligation and obtained a decree in absence on 4 July 1777. The following month, on 9 August 1777, the Mitchells, as creditors of Donald, obtained a decree of adjudication of the house against him and were infeft. Carson, however, raised a multiplepoinding and suspension of the decree in absence. The nature of feudal rights was such that they could not be affected, qualified or burdened by any personal deed and that a conveyance, so long as it continued personal, did not divest the disponee. ‘I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many.’ Bell -v- Gartshore reasoning would apply even where the creditors didd not rely on the register when contracting with the debtor.
References: 3 Ross’s LC 120, 1781 M 10296, Hailes 879
Judges: Lord Braxfield, Lord Gardenston
Jurisdiction: Scotland
This case cites:

  • Followed – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
    A debtor had acquired the land by fraud.
    Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . .
  • Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
    . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194229

Buchan v Farqhuarson: 1797

References: 1797 M 2905
Jurisdiction: Scotland
This case cites:

  • Disapprovd – Smith v Taylor 18-Dec-1795 (Bells Commentaries 18 December 1795)
    . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194230

Forbes’s Trustees v Macleod: 1898

The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick’s title to the subjects appeared from the record to be unqualified, as the assignation to him was ex facie absolute. But he acknowledged in a back letter that the assignation had been made to him in security of the advance, and he undertook to reconvey the bond when the debt had been repaid. The rule that the creditors of the ex facie absolute proprietor could take no higher right than he himself possessed was applied. As soon as the debt was paid, Mr Carrick ceased to have any pecuniary interest in the subjects. So there was nothing left for his creditors to attach. His title was, as Lord McLaren put it at p 1015, merely nominal.
References: (1898) 25 R 1012
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194232