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		Land - From: 1970 To: 1979 This page lists 166 cases, and was prepared on 02 April 2018. Â Â Manchester Corporation v Connolly; CA 1970 - [1970] Ch 420 Â Â In re Dolphin's Conveyance; ChD 1970 - [1970] 2 All ER 664; [1970] Ch 654; [1970] 3 WLR 31 Â Chung Khiaw Bank v United Overseas Bank [1970] AC 767 1970 Land A judgment creditor who obtains a charging order against his debtor's property can take only such interest as the debtor has in the property. 1 Citers Â Eagling v Gardner [1970] 2 All ER 838 1970 Land Introductory words in a covenant in a conveyance of land such as 'to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . . Estate . . .' are words of express annexation, but they are also not inconsistent with the establishment of a building scheme. 1 Citers Â Â Holmes v Cowcher; ChD 1970 - [1970] 1 WLR 834 Â Barclay v Barclay [1970] 2 QB 677 1970 Land, Trusts 1 Citers Â Â West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation; HL 1970 - [1970] AC 874; [1969] 3 All ER 172 Â Redbridge London Borough Council v Jaques [1970] 1 WLR 1604 1970 Lord Parker CJ Land An authority cannot authorise an unlawful restriction on the use of land subject to a public right of way. 1 Citers Â Â Irani Finance Ltd v Singh; CA 1970 - [1971] Ch 59; [1970] 3 All ER 199 Â Pugh v Savage [1970] 2 QB 373; [1970] EWCA Civ 9; [1970] 2 WLR 634; [1970] 2 All ER 353; (1970) 21 P & CR 242 14 Jan 1970 CA Harman, Salmon Land, Landlord and Tenant The enjoyment of an easement by a succession of tenants is sufficient to create a right by prescription for the landlord. 1 Citers [ Bailii ] Â Merritt v Merritt [1970] EWCA Civ 6; [1970] 2 All ER 760; [1970] 1 WLR 1211 27 Apr 1970 CA Lord Denning MR, Widgery, Karminski LJJ Contract, Land, Family The parties had setted an arramngement for the house on splitting up. Following the agreement, she repaid the mortgage over time, and then requested the conveyance of the house under the agreement. She now appealed from an order refusing the transfer into her name. Held: The appeal failed. Agreements between husband and wide are not generally intended to have legal effect, but "It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations." [ Bailii ] Â Crow v Wood [1970] EWCA Civ 5; [1971] 1 QB 77; (1970) 21 P and CR 929; [1970] 3 WLR 516; [1970] 3 All ER 425 9 Jun 1970 CA Lord Denning MR, Edmund Davies, Megaw LJJ Land, Agriculture Law of Property Act 1925 62 [ Bailii ] Â In Re St Peter's, Bushey Heath [1971] 1 WLR 357 26 Oct 1970 Conc G. H. Newsom Q.C. Ecclesiastical, Land cw Ecclesiastical Law - Faculty - Secular purpose - Use of unconsecrated curtilage of church - Jurisdiction to grant faculty A faculty was sought for the grant of a right of way easement over unconsecrated land, but within the curtilage of the church. Held: Such an easement could be granted, but the land itself must remain the property of the incumbent. Private rights of way should be granted only after full and open argument. The only way to grant an easement over consecrated land is through an Act of parliament or a church measure. 1 Cites [ lip ] Â Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society [1971] AC 1004; [1970] UKHL 5; [1970] 3 All ER 961; [1970] 2 WLR 1078 9 Nov 1970 HL Lord Wilberforce, Lord Reid Contract, Land, Undue Influence The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum. Held: The common law doctrine of non est factum has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended. The plea is available to a narrow class of persons, namely, those who are: unable to read owing to blindness or illiteracy; or permanently or temporarily unable, through no fault of their own, to have without explanation any real understanding of the purport of a particular document, whether that lack of understanding be from defective education, illness or innate incapacity. Lord Wilberforce said: "leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests upon him." Lord Reid said: "'the matter generally arises when an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity." . . And "The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisors without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have had such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case." 1 Cites 1 Citers [ Bailii ] Â Willson and Another v Greene and Another [1971] 1 WLR 635 10 Nov 1970 ChD Mr Justice Foster Land, Contract A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used 'for identification purposes only', and the purchaser knew the layout of the actual boundary. Held: Since the plans were used for identification purposes only, and the parties knew of the actual position of the boundary, the court was entitled to take into account the surrounding circumstances to construe the contract. The actual layout on the land prevailed. 1 Cites [ lip ] Â Â Cuckmere Brick Co Ltd v Mutual Finance Ltd; CA 1971 - [1971] Ch 949; [1971] 2 All ER 633; [1971] EWCA Civ 9; (1971) 22 P & CR 624; [1971] 2 WLR 1207 Â Brunner v Greenslade [1971] Ch 993 1971 ChD Megarry J Land, Constitutional Megarry J discussed the doctrine of ratio decidendi approving dicta in Lawrence. 1 Cites 1 Citers Â Â Allan's Trustes v Lord Advocate; HL 1971 - 1971 SC (HL) 45; [1970] UKHL 7; [1970] TR 417; 1971 SLT 62 Â Â Southwark London Borough Council v Williams; CA 1971 - [1971] 1Ch 734; [1971] 2 All ER 175; [1971] 2 WLR 467 Â Â Smith v Morgan; ChD 1971 - [1971] 1 WLR 803; [1971] 2 All ER 1500 Â Tehidy Minerals Ltd v Norman [1971] 2 QB 528 1971 CA Buckley LJ Land, Limitation The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the Prescription Act 1832 but not at common law. Discussing Angus v Dalton, applying the doctrine of lost modern grant: "where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason . . the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made." Prescription Act 1832 1 Cites 1 Citers Â Barstow and Others v Rothwell Urban District Council (1971) 22 P&CR 942 1971 Land 1 Citers Â North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd [1971] NSWLR 150 1971 Hope J Commonwealth, Land (Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a contiguous car park owned by that authority. The proposed sale to the local authority went off, and the company was left with its retained land, which was landlocked. The company then sought a declaration that its retained land had a way of necessity over the land sold. The company contended that it was entitled to a way of necessity by virtue of public policy, and that the intention of the parties was irrelevant. The purchaser contended that public policy was irrelevant, and that the company was entitled to no right of way, since the intention of the parties was that the company should have no such right. Held: The claim failed. A way of necessity arises to give effect to an actual or presumed intention. On the facts the company's intention was the contrary: its intention was that the land retained should have no access over the land conveyed, but instead should have access over the car park. 1 Citers Â Â National Westminster Bank Ltd v Allen; ChD 1971 - [1971] 2 QB 718 Â Â Wilson v Liverpool Corporation; CA 1971 - [1971] 1 WLR 302 Â Â Giles v County Building Constructors (Hertford) Limited; ChD 1971 - (1971) 22 P&CR 978 Â Gotobed v Pridmore (1971) EG 759 1971 CA Buckley LJ Land The court considered whether the long term non-user of an easement could amount to its abandonment. Held: Buckley LJ said: "To establish abandonment of an easement the conduct of the dominant owner must, in our judgement have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement . . abandonment is not, we think, to be likely in the third owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding they may have no present a use for it." 1 Citers Â Â Coleen Properties Ltd v Minister of Housing and Local Government; CA 26-Jan-1971 - [1971] 1 All ER 1049; (1971) 1 WLR 433; [1971] EWCA Civ 11 Â Lee-Parker v Izzett (2) [1972] 1 WLR 775; [1972] All ER 800 1972 Goulding J Land, Contract A contract was exchanged subject to 'the purchaser obtaining a satisfactory mortgage'. Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for uncertainty. 1 Cites Â Hutton v Esher Urban District Council [1972] 3 All ER 504 1972 ChD Land The council sought to build a sewer. It had power to acquire land for this purpose, and sought to acquire the plaintiff's bungalow. He argued that the word land did not include a building on land. 1 Cites 1 Citers Â Grigsby v Melville and Another [1972] 1 WLR 1355; [1973] 1 All ER 385 1972 ChD Brightman J Land 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' Held: The right asserted by the seller to use the premises as a store gave, in effect, an exclusive right of user over the whole of the servient tenement, and was not to be supported. The cellar had been included in the sale. 1 Citers Â Texaco Antilles Ltd v Kernochan [1972] AC 609 1972 HL Land The court considered the doctrine of unity of seisin of land as it affected restrictive covenants: "if the restrictions in question exist simply for the benefit of two adjoining premises [and not as part of a building scheme] and both those properties are bought by one man, the restrictions will automatically come to an end and will not revive on a subsequent severance unless the common owner then recreates them." 1 Citers Â Â Banning v Wright (Inspector of Taxes); HL 1972 - [1972] 2 All ER 987; [1972] 1 WLR 972 Â F T Challinor v Stone Rural District Cuncil Ref/161/1971 1972 LT JR Laird Land 1 Citers Â Â Loh Boon Siew v Chin Kim and Another; PC 8-Feb-1972 - [1972] UKPC 2 Â Â British Railways Board v Herrington; HL 16-Feb-1972 - [1972] AC 877; [1972] 2 WLR 537; [1971] 1 All ER 749; [1972] UKHL 1 Â Smout v Farquharson Unreported, 12 December 1972 12 Dec 1972 CA Land The court considered a case where there was difficulty in deriving the horizontal boundaries of a property. 1 Citers Â Â Rugby Joint Water Board v Shaw-Fox; HL 1973 - [1973] AC 202 Â Â St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2); CA 1973 - [1975] 1 WLR 468; [1973] 3 All ER 902 Â Wroth v Tyler [1974] Ch 30; [1973] 1 All ER 897 1973 ChD Megarry J Professional Negligence, Land The plaintiff had contracted to purchase a house for Â£6,000 but the defendant failed to complete. Damages were awarded in lieu of specific performance under a Lord Cairns' Act provision. At the date of the repudiatory breach the value of the house was Â£7,500. At the date of the order the value of the house was Â£11,500. The award to the plaintiff, which but for some matters which have no bearing on the point of principle, would have been the difference between the purchase price and the value at the date of the order, namely Â£5,500. Held: The presence of a class F Land Charge registered against a property was a breach of the condition requiring vacant possession. A solicitor failing to complete a registration becomes liable to his client in negligence. Megarry J said: "No doubt in exercising the jurisdiction conferred by the 1858 Act a court with equitable jurisdiction will remember that equity follows the law, and will in general apply the common law rules for the assessment of damages; but this is subject to the overriding statutory requirement that damages shall be 'in substitution for' the injunction or specific performance . . In my judgment, therefore, if under Lord Cairns' Act damages are awarded in substitution for specific performance, the court has jurisdiction to award such damages as will put the plaintiffs into as good a position as if the contract had been performed, even if to do so means awarding damages assessed by reference to a period subsequent to the date of the breach. This seems to me to be consonant with the nature of specific performance, which is a continuing remedy, designed to secure, inter alia, that the purchaser receives in fact what is his in equity as soon as the contract is made, subject to the vendor's right to the money, and so on. On the one hand, a decree may be sought before any breach of contract has occurred, and so before any action lies for common law damages; and on the other hand the right to a decree may continue long after the breach has occurred. On the facts of this case, the damages that may be awarded are not limited to the Â£1,500 that is appropriate to the date of the breach, but extend to the Â£5,500 that is appropriate at the present day, when they are being awarded in substitution for specific performance." Â Sinclair-Hill v Southcott (1973) 26 P&CR 490 1973 Graham J Land, Contract There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract. Held: The principle of the vendor's trusteeship extended to prohibit withdrawal of a planning application in such circumstances: "It was not suggested that a term to keep the planning application in being should be implied. Nor could it be said that a planning application could properly be regarded as part of property passing on sale in the same way and for the same reasons as the roses in the front garden. If it were the principle of trusteeship on the part of the vendor could be applied without any hesitation . . Under modern conditions, where all potential building land is subject to planning consents of various kinds, and where local authorities are likely to have large numbers of such applications before them, it is obvious that a high rather than a low place in the queue was of value to a speculative bidder . . It follows that the vendor in such circumstances is in my judgment under an obligation after the contract has been signed, not to withdraw a planning application which must be assumed to be of value to the purchaser, at any rate without obtaining the purchaser's consent to such withdrawal." 1 Citers Â Lloyds Bank Limited v Marcan [1973] 1 WLR 1387 1973 CA Russell LJ, Cairns LJ Equity, Land The mortgagor, knowing of the bank's application for possession of the property, granted a lease to his wife for a term of twenty years. He intended to deprive the mortgagee bank of the ability to obtain vacant possession of the property as and when a possession order was made. Held: Before section 172 could be used to avoid a transaction, dishonesty had to be shown. This transaction was dishonest. Russell LJ said:- "If he disposes of an asset which would be available to his creditors with the intention of prejudicing them by putting it, or its worth, beyond their reach, he is in the ordinary case acting in a fashion not honest in the context of the relationship of debtor and creditor" Cairns LJ said that:- "a conveyance for good consideration would be regarded as fraudulent if made with the deliberate intention of hindering creditors and for the benefit of the debtor himself rather than as a bona fide… arrangement" Law of Property Act 1925 172 Â Potters v Loppert [1973] Ch 399; [1973] 1 All ER 658 1973 ChD Sir John Pennycuick V-C Land, Contract The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made. Held: A stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors. A pre-contract deposit paid by a prospective purchaser was received subject to an obligation to repay the money on request unless and until a contract was concluded. Material considerations included that until the event was known the recipient was to keep the money in his own hands, but if the recipient employed the money he was entitled to any profit and answerable for any loss. Sir John Pennycuick V-C said: "I propose, in the first place, to consider the law in relation to contract deposits. Looking at the position apart from authority, one might perhaps at first sight rather expect that where any property is placed in medio in the hands of a third party to await an event as between two other parties the third party receives that property as trustee, and that the property and the investments for the time being representing it represent the trust estate. Where the property is something other than money - for example, an investment - that must, in the nature of things, almost certainly be the position. But where the property is money - that is, cash or a cheque resulting in a bank credit - this is by no means necessarily so. Certainly the money may be paid to the third party as trustee, but equally it may be paid to him as principal upon a contractual or quasi-contractual obligation to pay the like sum to one or other of the parties according to the event. It must depend upon the intention of the parties, to be derived from all the circumstances, including any written documents, in which capacity the third party receives the money." 1 Citers Â Â Official Custodian for Charities v Goldridge; CA 1973 - (1973) 26 P & CR 191; (1973) 227 EG 1467 Â Re Endricks' Conveyance [1973] 1 All ER 843 1973 ChD Goulding J Land, Contract Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity. 1 Citers Â Â Hutton v Esher Urban District Council; CA 1973 - [1973] 2 All ER 1123 Â Â Smith v Scott; ChD 1973 - [1973] Ch 314; [1972] 3 All ER 645; [1972] 3 WLR 783 Â Halifax Building Society v Clark [1973] Ch 307 1973 ChD Sir John Pennycuick V-C Land, Litigation Practice In order to satisfy the requirements for obtaining statutory relief under the 1970 Act, the mortgagor had to be able to show that he was likely to be able to pay within the reasonable period referred to not only the arrears of instalments but also the principal sum due under the mortgage. Sir John Pennycuick V-C interpreted "any sums due under the mortgage" in sub-section (1) restrictively as the entire mortgage debt. Administration of Justice Act 1970 36(1) Â Wroth v Tyler [1974] Ch 30; [1973 1 All ER 897 1973 Land, Professional Negligence The buyer's solicitor failed to register the contract to purchase the house after exchange. The seller's wife then registered a class F Land Charge to protect her right to occupy the house. The buyer refused to complete. Held: The seller was not giving vacant possession under the contract, and the buyer's solicitor was negligent. 1 Citers Â St Edmundsbury v Clark (No 2) [1973] 1 WLR 1572 1973 ChD Megarry J Land Megarry J described the presumption that a conveyance of land abutting a highway or river passes with it the the adjoining half of that road or river: "Various reasons had been given for the presumption. It has been based on convenience and the prevention of disputes, and in the case of public highways on a supposition that the proprietors on each side of the road each contributed half of it. Theobald's Law of Land, 2nd ed. (1929), p. 235, states: "It is unlikely that the grantor intended to reserve the narrow strip under the road or stream ad medium filum; there is therefore a presumption that such strip was intended to pass, but the presumption may be rebutted by the language of the conveyance, or the surrounding circumstances." This, perhaps, is an expansion of "convenience": it also may be based on intention. It seems in some degree improbable that a grantor of land should intend to retain for himself an adjoining long thin strip of land over which there is a public highway or an easement of way. When from a practical point of view such a strip of land is unlikely ever to be capable of beneficial enjoyment by anyone save the grantee of the adjoining land and his successors in title, not only is it improbable that the grantor intended to retain the strip but also it would not be very long before serious difficulties in tracing the title to the strip might arise. As Lord Moulton said in City of London Land Tax Commissioners v Central Railway Co [1913] AC 364, 384, "The law cannot permit that the land under the highway should belong to nobody." This consideration seems to me to apply with equal force whether the thin strip is subject to a highway or an easement of way over its whole width, or whether the way merely runs down the middle with thinner strips on each side of it. " 1 Citers Â Saint v Jenner [1973] Ch 275; [1973] 1 All ER 127 1973 CA Stamp LJ Land The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way. Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car's undercarriage. Stamp LJ said: "the learned judge found that as originally planned and laid down the ramps were not a substantial interference with the right of way. In this connection it is to be observed that in deciding what is a substantial interference with the dominant owner's reasonable user of a right of way, all the circumstances must be considered, including the rights of other persons entitled to use the way: here the rights of the defendants in connection with their property and riding activities; and there was, in our judgment, evidence on which the judge could properly hold, as he did, that the ramps as originally planned and constructed did not constitute a substantial interference." 1 Citers Â Murrayfield Ice Rink Ltd v Scottish Rugby Union Trustees 1973 SC 21 1973 Lord Justice Clerk Grant Scotland, Land The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as "a mere servitude right." 1 Citers Â Grigsby v Melville [1973] 3 All ER 455 6 Jul 1973 CA Russell LJ, Stamp LJ, James Lj Land 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. 1 Cites 1 Citers Â Clearbrook Property Holdings Limited v Verrier [1974] 1 WLR 243 1974 ChD Templeman J Land, Contract The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff's claim for specific performance would have been put in a position in which it was bound to fail in limine. Held: To redress the unfairness to the defendant vendor, whose property was unsaleable while the caution remained registered, the caution should be vacated on the plaintiffs being given the opportunity to make an immediate application for an interlocutory injunction restraining the defendant from dealing with the land in any way inconsistent with the plaintiff's claim pending the trial, which would not be opposed by the defendant, and the defendant getting a cross undertaking in damages. 1 Citers Â Worcestershire County Council v Newman [1974] 2 All ER 867 1974 QBD Cairns LJ Land, Torts - Other A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown. 1 Citers Â Longbottom and Longbottom v Bingley Urban District Council [1974] 14 RVR 139 1974 LT Land When calculating compensation on the compulsory purchase of property occupied by a partnership, an allowance should be made for managerial or supervisory wages by adding back the wages or drawings of both partners to the average net profits for three years. This was because the council were required to take the premises and the business as they found them and the business was a partnership of the two claimants and it was irrelevant that it might have been bought by a limited company if sold as a going concern. 1 Citers Â Â British Railways Board v G J Holdings Ltd; 1974 - (1974) 230 EG 973 Â Â Harrison v Battye; 1974 - [1975] 1 WLR 58; [1974] 3 All ER 830 Â Â Commissioner for Railways v Valuer-General; PC 1974 - [1974] 1 AC 328 Â In Re Wallis and Simmonds (Builders) Ltd [1974] 1 WLR 391; [1974] 1 All ER 561; [1974] AC 467 1974 ChD Templeman J Land, Equity The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness. Templeman J said: "But in my judgment this is a contractual lien - it is said to be a contractual lien - and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.' The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95." 1 Citers Â Heron Garage Properties Ltd v Moss [1974] 1 All ER 421; [1974] 1 WLR 148 1974 Brightman J Land A contract for the sale of land was conditional on obtaining planning permission. It was not granted. The purchaser sought to enforce the contract. Held: He failed. Brightman J said: "Without seeking to define the precise limits within which a contracting party seeking specific performance may waive a condition on the ground that it is intended only for his benefit, it seems to me that in general the proposition only applies where the stipulation is in terms for the exclusive benefit of the plaintiff because it is a power or right vested by the contract in him alone . . or where the stipulation is by inevitable implication for the benefit of him alone . . If it is not obvious on the face of the contract that the stipulation is for the exclusive benefit of the party seeking to eliminate it, then in my opinion it cannot be struck out unilaterally. I do not think that the court should conduct an enquiry outside the terms of the contract to ascertain where in all the circumstances the benefit lies if the parties have not concluded the matter on the face of the agreement they have signed." 1 Cites 1 Citers Â Law v Jones [1974] Ch 112 1974 Contract, Land A "subject to contract" document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the terms of the contract but also contain an acknowledgement or recognition by the signatory to the document that a contract had been entered into. The defendants lost because the alleged memorandum was expressly "subject to contract" and therefore did not satisfy section 40 because it did not recognise or admit the existence of a contract. Law of Property Act 1925 40 1 Citers Â Trocette Property Co Ltd v Greater London Council [1974 RVR 306; (1972) 28 P&C R 408 1974 CA Lawton LJ, Peter Gibson LJ, Schiemann LJ Land Lawton LJ considered the scheme of compensation under the 1961 Act and said: "The assessment of compensation in cases such as this is a most difficult task calling for the judicial use of fertile imagination. Assumptions have to be made (see ss 14, 15 and 16) and some realities disregarded (eg any increase in value which is entirely due to the scheme underlying the acquisition – the so called Pointe Gourde principle). It is important that this statutory world of make-believe should be kept as near as possible to reality". Peter Gibson LJ said: " In particular I would emphasise the necessity to adhere to reality subject only to giving full effect to the statutory hypothesis, so that the hypothetical lessor and lessee act as a prudent lessor and lessee. I would call this the principle of reality, which is, to my mind, of fundamental importance in this case." Schiemann LJ said: "The statutory hypothesis is only a mechanism for enabling one to arrive at a value for a particular hereditament for rating purposes. It does not entitle the valuer to depart from the real world further than the hypothesis compels." Land Compensation Act 1961 1 Citers Â Quadrangle Development and Construction Co Ltd v Jenner [1974] 1 ALL ER 729; [1974] 1 WLR 68 1974 CA Russel LJ, Buckley LJ Land, Contract A Notice to Complete binds both parties to a land contract. Buckley LJ said that the party giving the notice must be ready and willing at the time of the giving of the notice to fulfill his own outstanding obligations under the contract, and also at any time during the period of the notice up to and including the time set for completion. 1 Citers Â Davis v Whitby [1974] 1 Ch 186 1974 ChD Lord Denning MR, Stamp LJ Land, Limitation The court discussed the need for some system of acquisition of right by user. Lord Denning MR said: "the long user as of right should by our law be given a lawful origin if that can be done." Stamp LJ said: "if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin." Law of Property Act 1925 40 1 Citers Â Â Wrotham Park Estate Ltd v Parkside Homes Ltd; ChD 1974 - [1974] 1 WLR 798; [1974] 2 All ER 321 Â Â Southern Portland Cement Ltd v Cooper; PC 1974 - [1974] AC 623; [1974] 2 WLR 152; [1974] 1 All ER 87 Â Argyle Motors (Birkenhead) v Birkenhead Corporation [1974] CLY 374; [1975] AC 99 1974 HL Lord Wilberforce Land The House described the way that the 1845 Act continued to affect the calculation of compensation: "The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording - which itself has an earlier history - in some sort of accord with the realities of the industrial age." Land Compensation Act 1965 10 1 Citers Â Â Storer v Manchester City Council; CA 1974 - [1974] 1 WLR 1403 Â Haron Development Company Ltd (in liquidation) v West Sussex County Council Ref/167/1973 1974 LT Douglas Fanks QC Land Â Holiday Inns Inc v Broadhead (1974) 232 EG 951 1974 Goff J Land, Contract The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, entitling the plaintiff to relief in equity. The defendant had repeatedly assured the plaintiffs that he would stand by his word. Held: Goff J said: "while they [i.e. the plaintiff] have never suggested that the understanding, arrangement or bargain was sufficiently precise to be enforceable as a contract, they claim to be entitled to relief in equity." and "In my judgment the authorities clearly establish that there is a head of equity under which relief will be given where the owner of property seeks to take an unconscionable advantage of another by allowing or encouraging him to spend money, whether or not on the owner's property, in the belief, known to the owner, that the person expending the money will enjoy some right or benefit over the owner's property which the owner then denies him. This arises where the person expending the money does so under a mistaken belief that the property is his own, that belief being known to the other, as in Ramsden v Dyson (1866) LR 1 HL 129, but mistake is not an essential element of a claim to relief of this nature. The authorities also establish, in my judgment, that this relief can be granted although the arrangement or understanding between the parties was not sufficiently certain to be enforceable as a contract, and that the court has a wide, albeit of course judicial, discretion to what extent relief should be given and what form it should take." and "Mr Waite [counsel for the defendants]… rested his case on what he described, and rightly described, as the crucial question whether there was present a belief on the part of the plaintiffs, induced by Mr Broadhead's words or silence, that they would receive a sufficient interest in the land to justify the expenditure. He said this was an arrangement between commercial men dealing with each other at arm's length with their eyes open, and so the plaintiffs must be taken to have elected as a matter of commercial judgment to run the risk that Mr Broadhead might, as I add he clearly did, have private reservations undisclosed at the date of the expenditure which might frustrate the conclusion of the anticipated bargain, and indeed they might have similar reservations themselves. I am wholly unable to draw any such inference or conclusion. Mr Wilson's [the head of the plaintiff] evidence, which I accept, was that he thought this was a gentleman's agreement which would be honoured. Mr Tigrett [the plaintiff's representative] in his evidence, which I also accept, said that no reservations or thought of backing our ever occurred to him, and the whole tenor of Mr Broadhead's conduct and letters was calculated to make the plaintiffs believe that if planning permission were obtained they would have a straight 3 and 1 lease on the standard terms. I am satisfied and find as a fact that both Mr Wilson and Mr Tigrett believed that and Mr Broadhead well knew that they did. His failure to inform them of his true state of mind was deceitful and unconscionable. " The plaintiff had made out a clear case for relief. The plaintiff's equity was best satisfied by a declaration that the site was held upon trust for sale, and, as to the proceeds of sale, after paying various costs and expenses, on trust for the plaintiff and defendants in equal shares. 1 Cites 1 Citers Â Myers v Milton Keynes Development Corporation [1974] 1 WLR 696 1974 CA Lord Denning MR Land, Damages Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the "scheme" meant that the valuer should disregard the scheme altogether or permitted him to have regard to it when identifying the "proposals of the acquiring authority" in accordance with which the valuer had to assume planning permission would be granted. A valuer assessing land for compulsory purchase was at risk of having to 'conjure up a land of make-believe' and 'let his imagination take flight to the clouds' "What is to be assumed about the Walton Manor Estate itself? Here again one thing is clear. You are not to assume that it would have been developed in accordance with the proposals of the development corporation. You are to disregard any increase by reason of the estate itself being developed in accordance with their proposals. . . But you are to assume that after 10 years planning permission would be available for development as a residential area." and “It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a café), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.” 1 Cites 1 Citers Â Wickham Tools v Schuler AG [1974] AC 235 1974 HL Lord Wilberforce Land Lord Wilberforce referred to the Watcham case as: "a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate." but "Whether in its own field, namely that of interpretation of deeds relating to real property by reference to acts of possession, it retains any credibility in the face of powerful judicial criticism is not before us." 1 Cites 1 Citers Â Riley v Penttila (1974) 30 LGRA 79; [1974] VR 547; [1974] VicRp 67 20 Mar 1974 Gillard J Land (Supreme Court of Victoria) 1 Citers [ Austlii ] Â Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1974] 3 WLR 387; [1975] QB 94 10 Jul 1974 CA Lord Denning MR, Stamp and Ormrod L.JJ. Land, Limitation A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the disputed land. They farmed the disputed land for several years. The garage was sold to the defendants, but the land remained unidentified, and the plaintiffs continued to farm it. The new road was abandoned, and the defendants tried to sell the disputed land to the plaintiffs. When they sought to fence the land, the action was begun, claiming possessory title, but failed. The plaintiffs appealed. Held: The owners of the disputed land had left it unoccupied for the purposes of eventual use in connection with the proposed new road and there had been no sufficient ouster of the owners so as to create 12 years' adverse possession within the Limitation Act 1939. The appeal failed. 1 Cites 1 Citers [ lip ] Â Time Products Ltd v Combined English Stores Unreported, 2 December 1974 2 Dec 1974 Oliver J Land, Trusts The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property in a manner to the advantage of both. The arrangement was not sufficiently detailed as to constitute an enforceable contract and the offeror, having become the purchaser with the other refraining from competing, sought to keep the property for itself, excluding the other from any benefit. Held. The property was declared to be held on trust for the two parties in equal shares. 1 Citers Â Â Tiverton Estates Ltd v Wearwell Ltd; CA 1975 - [1975] Ch 146 Â Edwards v Marshall Lee (1975) 235 EG 901; Times, 18 June 1975 1975 ChD Brightman J Land The parties contracted for the sale and purchase of land. A mortgage receipt was executed by a different company (Barclays Bank Trust Co ltd, not Barclays Bank Ltd) and therefore did not operate as a statutory receipt to discharge it. The plaintiff purchaser requisitioned a discharge. The defendant replied with a confirmation of release from both banks, but the plaintiff refused to complete and sought return of his deposit. Held: The receipt did show that the money had been paid and the mortgage discharged. The receipt implied an authority to act on behalf of the original chargee, even if it did not strictly comply. There was no defect in the title. The second receipt, in any event satisfied the requisition. Law of Property Act 1925 115 1 Citers Â New Windsor Corporation v Mellor [1975] 3 All ER 44; [1975] 3 WLR 25; [1975] Ch 380 1975 CA Denning MR L, Browne LJ, Brightman J Land The respondent had obtained registration of land, Bachelors' Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval times and had later been leased for grazing subject to the recreational rights of the inhabitants. The plaintiff sought to deny the rights. The Commons Commissioner and Queens Bench upheld the registration. Held: Tthe inhabitants indeed had a customary class b right to use the two-acre piece of land for sport and recreation. The land had been used since 1651 by the burgesses under various leases, allowing all to have access and for shooting and to maintain water butts. Improvements had been mde by the inhabitants in 1809. There was clearly a customary right to use the land for recreational purposes. That was a reasonable use and the registration as a village green was good. It may not be clear how the land could be used, but it could clearly not be used in a way inconsistent with the customary uses as wanted by the plaintiff. The period of 20 years in the Act referred to the 20 years before its passing. Lord Denning considered the 'one locality' rule, and criticised the case of Edwards v Jenkins. Lord Denning MR said: "To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large: see Fitch v. Rawling (1795) 2 Hy.B1. 394. In Edwards v. Jenkins [1896] 1 Ch. 308 Kekewich J. held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it "and otherwise enjoy any lawful and innocent recreation at any times in the year": see Hall v. Nottingham (1875) 1 Ex D. 1, 2" Brightman LJ said this about the locality point: "I should prefer to reserve my opinion as to whether Edwards v. Jenkins [1896] 1 Ch. 308 is good law. There is some authority for supposing that a customary right cannot normally exist over land in one locality for the benefit of the inhabitants of a different locality. Nevertheless, were it relevant to this appeal, I would feel it difficult to understand why such a right cannot exist over land in one locality for the benefit of the inhabitants of that and one or more other localities, which was in effect the right unsuccessfully claimed in Edwards v. Jenkins. For myself, I express no concluded view". Commons Registration Act 1965 3 1 Cites 1 Citers Â Michael Richards Properties Ltd v Corporation of Wardens of St Saviour's Parish Southwark [1975] 2 All ER 416 1975 Goff J Contract, Land Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words "subject to contract" at the bottom. The purchaser had refused to complete after discovering that the local authority intended to acquire the property compulsorily. Held: Since there was nothing left to negotiate, the words subject to contract could be rejected as meaningless. As to the request for the return of the deposit: "Section 49, however, was passed to remove the former hardship which existed where a defendant had a good defence in equity to a claim for specific performance but no defence in law, and, therefore, the deposit was forfeited. I am not prepared to say that the jurisdiction can only be exercised in such a case, but outside that ambit, it should only be exercised, if at all, sparingly and with caution. Here the plaintiffs have advanced only two reasons why I should exercise my discretion in their favour. First, that if I do not, the defendants will have made a profit, and secondly, that the warning concerning the views of the local authority could have been communicated before the deposit was paid. The first element, however, is inherent in cases where a deposit is forfeited, and the second is not really significant because the contract was concluded before then by the letter of acceptance…." Law of Property Act 1925 49(2) 1 Citers Â Â Bracewell v Appleby; ChD 1975 - [1975] Ch 408 Â Â Regina v Secretary of State for the Environment ex parte Hood; CA 1975 - [1975] 1 QB 891 Â Rightside Properties Ltd v Gray [1975] Ch 72 1975 Walton J Contract, Land 1 Citers Â Â Schindler v Pigault; 1975 - [1975] 30 P and CR 328 Â Â St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2); ChD 1975 - [1975] 1 All ER 772; [1975] 1 WLR 468 Â Â Higgs v Nassauvian Ltd; PC 1975 - [1975] AC 464; [1975] 2 WLR 72; [1975] 1 All ER 95 Â Â Re Kershaw's Application; LT 1975 - (1975) 31 P& CR 187 Â Â LE Walwin and Partners Limited v West Sussex County Council; ChD 1975 - [1975] 3 All ER 604 Â Â Hereford and Worcester County Council v Newman; CA 1975 - [1975] 2 All ER 673; [1975] 1 WLR 901 Â Smirk v Lyndale Developments Ltd [1975] Ch 321; [1975] 1 All ER 690 1975 ChD Pennycuick V-C Land, Limitation, Landlord and Tenant The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease, 1 Cites 1 Citers Â Â St Edmunsbury v Clark (No 2); CA 1975 - [1975] 1 WLR 468 Â Â Lund v Taylor; CA 1975 - [1975] 31 P & C R 167 Â Â Crabb v Arun District Council; CA 23-Jul-1975 - [1976] Ch 179; [1975] 3 All ER 865; [1975] EWCA Civ 7 Â Horrocks and Another v Forray [1975] EWCA Civ 9; [1976] 1 All ER 737; [1976] 1 WLR 230 7 Nov 1975 CA Land, Wills and Probate [ Bailii ] Â Harris v Birkenhead Corporation [1976] 1 All ER 341; [1975] EWCA Civ 10; [1975] 1 WLR 379 12 Nov 1975 CA Megaw, Lawton, Ormrod LJJ Land A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a finding of liability. Held: For the purposes of the Act the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection. Housing Act 1957 1 Citers [ Bailii ] Â Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976 SC 161 1976 Lord Dunpark Land, Scotland The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to temporary anchorage in the course of passage and that it did not extend to quasi-permanent anchorage between voyages. Held: A right to lay up a vessel between voyages is a not necessary incident of a public right of navigation: "the public right of navigation is restricted in the manner for which the pursuers contend. In my opinion, the earliest point of time when navigation begins is when a vessel is being prepared for a voyage, and navigation ends when the ship is left, either unmanned or with a caretaker crew, at the end of a voyage. A ship moored between voyages is not being navigated. The laying up of a vessel is, in my opinion, an incident of ownership; it cannot properly be regarded as a necessary incident of the right of navigation." 1 Citers Â Â Bird and Bird v Wakefield Metropolitan Borough Council; 1976 - (1976) 33 P&CR 478 Â Gibson v Hunter Home Designs Limited 1976 SC 23 1976 Lord President Emslie Scotland, Land 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." 1 Citers Â Security Trust Co v The Royal Bank of Canada [1976] AC 503; [1975] UKPC 23 1976 PC Lord Cross Commonwealth, Land, Equity, Contract (Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the agreed proportion of the price. Fisher failed to pay the stipulated sum on the fixed date. Fisher then granted a debenture, creating a fixed charge on its existing property and a floating charge on future property. A receiver was subsequently appointed under the debenture. The contract was eventually completed. In the subsequent litigation, the question arose whether the charge over the property created by the debenture took priority over the vendor's mortgage. The Judicial Committee of the Privy Council, allowing the vendor's appeal, held that Fisher's interest in the land was merely an equity of redemption subject to the vendor's mortgage, and that the mortgage accordingly took priority over the charge created by the debenture. Lord Cross limited the extent of the law of escrow: "On fulfilment of the condition subject to which it was delivered as an escrow, a deed is not taken to relate back to the date of its delivery for all purposes, but only for such purposes as are necessary to give efficacy to the transaction - ut res magis valeat quam pereat (see Butler and Baker's case (1591) 3 CoRep 25a). Thus, the fact that the grantor has died before the condition of an escrow is fulfilled does not entail the consequence that the disposition fails. If and when the condition is fulfilled the doctrine of relation back will save it, but notwithstanding the relation back for that limited purpose the grantee is not entitled to the rents of the property during the period of suspense or to lease it or to serve notices to quit." 1 Citers [ Bailii ] Â Â Copeland Borough Council v Secretary of State for the Environment; 1976 - (1976) 31 P&CR 403 Â Treloar v Nute [1976] 1 WLR 1295 1976 CA Sir John Pennycuick Land, Limitation If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have "dispossessed" the true owner for the purposes of Schedule 1, paragraph 1. Sir John Pennycuick said: 'if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordingly at the end of the 12 years the title of the owner is extinguished. That is the plain meaning of the statutory provisions' " 1 Citers Â Â Wills Trustees v Cairngorm Canoeing and Sailing School; HL 1976 - [1976] SC (HL) 30 Â Â Post Office v Nottingham Council; CA 1976 - [1976] 1 WLR 624 Â Â Steadman v Steadman; HL 1976 - [1976] AC 536 Â Â Kingston v Phillips; CA 1976 - Unreported, 1976 Transcript 279 Â Central Electricity Generating Board v Clwyd County Council [1976] 1 All ER 251; [1976] 1 WLR 151 1976 Goff J Land The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of the land as common land. He took the view, after hearing the evidence as to grazing and other uses, that the land was subject to rights of common within the meaning of the definition in section 22, although none had been registered at the date of the provisional registration of the land as common land, and none were exercisable at the date of the hearing. Held: The registration was overruled. Any rights of common which might have existed when the provisional registration was made had not been extinguished for want of registration. Goff J. held that an existing right of common was extinguished if not registered by the prescribed date. Commons Registration Act 1965 1 Citers Â Munton v Greater London Council [1976] 1 WLR 649 1976 CA Lord Denning MR Contract, Land With respect to the words 'subject to contract', Lord Denning said, "It is of the greatest importance that no doubt should be thrown on the effect of those words". As to the difference netween the procedures of compulsory purchase and ordinary contracts: "First, when notice to treat is given, it binds the acquiring authority to purchase and the owner to sell at a price to be ascertained… Second, when there is an unconditional agreement fixing the price – whether in writing or by word of mouth – it is the equivalent of a binding contract between the parties…. Once, therefore a notice to treat has been served and there is an agreement on the price, a binding obligation is created which is equivalent to a contract between the parties." Law of Property Act 1925 840 1 Cites 1 Citers Â Â SJC Construction v Sutton London Borough Council; CA 1976 - [1974] 28 P & CR 200; (1975) 234 EG 363; [1976] RVR 219 Â Chang v Registrar of Titles (1976) 137 CLR 177; (1976) 50 ALJR 404; (1976) 8 ALR 285; [1976] HCA 1 11 Feb 1976 Mason J, Jacob J Land, Contract, Commonwealth (High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land. Mason J said: "It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor 'is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay' (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel's view was accepted by the Court of Appeal in Rayner v Preston. It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale". Jacob J: "Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties". 1 Citers [ Austlii ] Â Â Wills' Trustees v Cairngorm Canoeing and Sailing School Ltd; HL 3-Mar-1976 - [1976] UKHL 8 Â Â Secretary of State for Education and Science v Tameside Metropolitan Borough Council; HL 21-Oct-1976 - [1977] AC 1014; [1976] UKHL 6; [1976] 3 All ER 665; [1976] 3 WLR 641 Â Berkley v Poulett and others [1976] EWCA Civ 1; [1977] 1 EGLR 86; (1977) 241 EG 911 29 Oct 1976 CA Stamp LJ, Scarman LJ, Goff LJ Land, Contract Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was whether certain objets d'art were fixtures or chattels. Held: None of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub-contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub-purchaser Y. The court was asked whether some pictures, prints, a statue, and a sundial, each affixed to the land, had become fixtures or had remained chattels. If fixtures, they passed on the conveyance of the land; if chattels they did not. Held: The modern answer to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation. Here, the paintings had been hung for their better enjoyment, and were not fixtures. Neither the statue nor the sundial were physically attached to the realty, and remained chattels. Lord Justice Scarman said: "If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty. " Stamp LJ said that the vendor "is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust." 1 Cites 1 Citers [ Bailii ] Â Derby and Co Ltd v ITC Pension Trust Ltd [1977] 2 All ER 890 1977 Oliver J Contract, Land The court considered a party resisting a claim to an estoppel: "where parties negotiate on a basis "subject to contract" everybody knows there is a risk that, at the end of the day, either side may back out of negotiations, up to the point where leases are exchanged." 1 Citers Â Â Western Bank Ltd v Schindler; CA 1977 - [1977] Ch 1 Â Red House Farms (Thorndon) Ltd v Catchpole [1977] 1 EGLR 125 1977 CA Cairns LJ, Waller LJ Land 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 & CR 633, at p 641. I am quite satisfied that between 1945 and 1964 the only profitable use of this land was for shooting. Our attention was drawn by Mr Cullen, on behalf of the defendant, to the Privy Council case of Cadija Umma & Anr v S Don Manis Appu [1939] AC 136, where, as appears at p 140, cutting the grass was treated as possession in relation to the particular piece of land. So here I think that the learned judge was quite right to treat the shooting activity as constituting possession." Waller LJ said: "But, in my view, it is clear from the authorities that when considering what is required to amount to possession the court should look at the nature of the land which is being considered, and, as I see it, if the only purpose for which the land can be used is for shooting, and that is the actual use made in this case by the defendant, then that is an act of possession which is quite sufficient for the judge to draw the inferences which he did." 1 Citers Â Berkely v Poulett [1977] 1 EGLR 86; [1977] 261 EG 911 1977 CA Stamp LJ, Scarman LJ Land, Contract The court discussed the duties of a vendor to the property between exchange and completion: "These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive trustee, or a trustee sub modo, of the estate for the purchaser from the time when the contract is constituted. But to say that it is the duty of the vendor as trustee for the purchaser to care for the property is to put the cart before the horse and may lead you into error. He is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. That this is so is sufficiently illustrated by the fact that prima facie the vendor is until the date fixed for the completion entitled to receive and retain the rents and profits and that as from that date the purchaser is bound to pay interest. And you may search the Trustee Act 1925 without obtaining much that is relevant to the relationship of vendor and purchaser. Thus, although the vendor because of his duties to the purchaser is called a trustee, it is wrong to argue that because he is so called he has all the duties of or holds the land on a trust which has all the incidents associated with the relationship of a trustee and his cestui que trust." Scarman LJ discussed what were the two tests for whether an item became affixed to the land: "(1) the method and degree of annexation; and (2) the object and purpose of the annexation. " and “In other words, a degree of annexation which in earlier time the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, not withstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one. The relationship of the two tests to each other requires consideration. If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless, an object, resting on the ground by its own weight alone, can be a fixture, if it is so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima Facie, however, an object resting on the ground by its own weight alone is not a fixture: see Megarry and Wade , p 716. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture, if, for example, the purpose of its affixing be that “of creating a beautiful room as a whole” (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619. An in the famous instance of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty.” . . . and the tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. It must be remembered that in many cases the item being considered may be one that has been bought by the mortgagor on hire purchase, where the ownership of the item remains in the supplier until the instalments have been paid. Holding such items to be fixtures simply because they are housed in a fitted cupboard and linked to the building by an electric cable, and, in cases of washing machines by the necessary plumbing would cause difficulties and such findings should only be made where the intent to effect a permanent improvement in the building is incontrovertible. The type of person who instals or attaches the item to the land can be a further indicator. Thus items installed by a builder, eg the wall tiles will probably be fixtures, whereas items installed by eg a carpet contractor or curtain supplier or by the occupier of the building himself or herself may well not be. The judge's directions to himself on the law were these: that the primary test whether an item is or is not a fixture is the degree of annexation of the item to the building. He cited Megarry and Wade on Real Property at page 732: “An article is prima facie a fixture if it has some substantial connection with the land or a building on it” and “A chattel attached to the land or a building on it, in some substantial manner, eg by nails or screws, were prima facie a fixture even if it would not be difficult to remove it. Examples in this category are a fireplace, panelling, wainscot and a conservatory on a brick foundation.” 1 Citers Â Jelson Ltd v Blaby District Council [1977] 1 WLR 1020; (1978) 1 All ER 548 1977 CA Land A strip of land had been originally reserved for a road, and was subsequently sold to the council under a purchase notice. A claim for compensation was made. On appeal the Minister issued a nil certificate on the basis that the correct time at which to consider whether planning permission might reasonably have been expected to be granted was the date of the deemed notice to treat and at that time, after the land on either side had been developed, the land was incapable of development. Held. The Minister was correct. Under the judicial version of the rule permission could be assumed for residential development. 1 Citers Â Twentieth Century Banking Corporation Ltd v Wilkinson [1977] Ch 99 1977 ChD Templeman J Land, Limitation Property was charged in 1973. The principal was be repayable in 1988 with interest. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted, the mortgagee had to apply to court for an order for sale in lieu of foreclosure under section 91(2) of the 1925 Act. Held: The order was made. As to the proceeds: "The plaintiffs will of course be entitled, having paid the expenses of the sale, to discharge all arrears of interest down to date; that will leave a principal sum outstanding, the principal sum of £19,000. There will remain in the hands of the plaintiffs, after discharging arrears of interest, and if the sale produces only the £18,000 expected, a sum of, say, £15,000. Now, in my mind, as the plaintiffs will have that sum of £15,000 in hand they will be unable to say in future as regards that £15,000 "Payment is not yet due, therefore we can invest it. Interest at the high rate secured by the mortgage will continue to accrue, and we will give credit for the interest produced by investing the money at a rate inevitably less than the mortgage rate." It seems to me that either as a necessary consequence, or as a matter of a condition which I can impose, the plaintiffs must treat any money which is in hand after payment of expenses and interest down to date as being in satisfaction pro tanto of the principal secured by the mortgage, and of all future interest on the principal so satisfied. That seems to me to be fair to both parties and to produce an equitable result." Law of Property Act 1925 91(2) 1 Citers Â Britford Common, In re [1977] 1 WLR 39; [1977] 1 All ER 532 1977 Land 1 Citers Â In re Chewton Common [1977] 3 All ER 509; [1977] 1 WLR 1242 1977 Land 1 Citers Â Tito v Waddell (No 2); Tito v Attorney General [1977] Ch 106; [1977] 3 All ER 129; [1977] 3 WLR 972 1977 ChD Megarry VC Land, Equity, Constitutional, Damages Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees "But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: "Will a sale of trust property by the trustee to his wife be set aside?", nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee's wife from whom he has been living separate and in enmity for a dozen years." The issue arose, in relation to "the 1931 transaction", as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: "In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government." As to damages: "Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages." Crown Proceedings Act 1947 40(2)(b) 1 Cites 1 Citers Â Yateley Common, Hampshire, In re [1977] 1 All ER 505; [1977] 1 WLR 840 1977 Land 1 Citers Â Dunton v Dover District Council [1977] QB 87 1977 Griffiths J Land, Nuisance References to decibels in actions for noise nusance, are not helpful unless compared with everyday sounds to which others can all relate. 1 Citers Â Buckley v Lane Herman and Co [1977] CLY 3143 1977 Land, Professional Negligence, Legal Professions A solicitor instructed to exchange contracts on a related sale and purchase must achieve simultaneous exchange. If he failed to do so he will be liable in negligence to the client for any losses. Â Shaw v Applegate [1977] 1 WLR 970 1977 CA Buckley LJ, Goff LJ Land There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay. Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant. Buckley LJ said: "The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it." As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right — as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant — acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.” 1 Cites 1 Citers Â Williams v Burlington Investments [1977] SJ 121 1977 Equity, Land 1 Citers Â Â Powell v McFarlane; ChD 1977 - (1977) 38 P&CR 452 Â Gray v Wykeham Martin and Goode Unreported, 17 January 1977 17 Jan 1977 Land, Limitation 1 Citers Â Â Bernstein of Leigh (Baron) v Skyview and General Ltd (Summary); QBD 9-Feb-1977 - [1977] EWHC QB 1; [1977] 3 WLR 136; [1977] 241 EG 917; [1977] 2 All ER 902; [1978] QB 479 Â Moreton Cullimore v Routledge Unreported, February 11 1977 11 Feb 1977 CA Lord Denning MR Land Where a property being conveyed was said to be more particularly described or delineated on a plan, the verbal description prevailed but this was only because the court treated the combined expressions as meaning no more than "for the purpose of identification only". Lord Denning MR: "In this case we have the words 'for the purpose of identification only'. Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof." 1 Citers Â Â Miller v Jackson; CA 6-Apr-1977 - [1977] 1 QB 966; [1977] 3 All ER 338; [1977] EWCA Civ 6 Â G and K Ladenbau (UK) Ltd v Crawley and De Reya [1978] 1 WLR 266; [1977] 2 All ER 118 25 Apr 1977 QBD Mocatta J Land, Professional Negligence, Damages The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve. Held: In the light of the defendants' knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion. Commons Registration Act 1965 10 1 Cites [ lip ] Â Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; [1977] UKHL 3; [1977] 2 All ER 385; [1977] 2 WLR 951; [1977] QB 411 28 Apr 1977 HL Lord Wilberforce, Lord Edmund-Davies, Lord Keith of Kinkel Land, Damages The section in the 1881 Act does not apply to a quasi-easement because "When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist." and "He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment." Lord Edmund-Davies said as to Wheeldon v Burrows: "The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that "The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property…" But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent." Lord Keith of Kinkel said that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had "no place in compulsory purchase". Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order: "To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer" and "section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist Conveyancing Act 1881 6 - Law of Property Act 1925 62 1 Cites 1 Citers [ Bailii ] Â Smith v UMB Chrysler (Scotland) Ltd [1978] 1 WLR 165; [1977] UKHL 7; 1978 SLT 21; [1978] 1 All ER 18; 8 BLR 1; 1978 SC (HL) 1 9 Nov 1977 HL Lord Wilberforce, Viscount Dilhorne Contract, Land The principles set out in Canada Steamship apply to "clauses which purport to exempt one party to a contract from liability". The principles should be applied without 'mechanistic construction'. Lord Keith of Kinkel said: The tests were guidelines, but "guidelines" but "the matter is essentially one of the ascertaining the intention of the contracting parties from the language they have used, considered in the light of surrounding circumstances which must be taken to have been within their knowledge." 1 Cites 1 Citers [ Bailii ] Â Dahlia Ltd v Four Millbank Nominees Ltd and Another [1977] EWCA Civ 5; [1978] Ch 231 24 Nov 1977 CA Buckley, Orr, Goff LJJ Contract, Land Appeal against strike out of statement of claim. They had negotiated with the defendants for the purchase of several properties. Though formal contracts were never exchanged, the plaintiffs said that they had the benefit of a unilateral contract to enter into a binding written contract. 1 Cites [ Bailii ] Â Wigginton and Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 7 Dec 1977 CA Buckley and Bridge LJJ and Sir David Cairns, Megarry J Land 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". 1 Cites 1 Citers [ lip ] Â Ferguson v Tennant 1978 SC (HL) 19 1978 HL Lord Fraser of Tullybelton, Lord Grieve Scotland, Land Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is "proper to the dominant" - that, is, that the number that the proprietor of the dominant tenement can support from his own resources. 1 Citers Â In re Niyazi's Will Trusts [1978] 1 WLR 910 1978 Land Terms in older documents could be re-interpreted to accord with current useage. 1 Citers Â Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde [1979] AC 508; [1978] 2 All ER 1168; [1978] 3 WLR 378; 142 JP 541; 122 Sol Jo 507 1978 HL Lord Wilberforce Jurisdiction, Land No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the law. 1 Cites 1 Citers Â Swordheath Properties Ltd v Floyd [1978] 1 WLR 550; [1978] 1 All ER 721 1978 Land, Damages The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. 1 Cites 1 Citers Â In re Turnworth Down Dorset [1978] 1 Ch 251 1978 Oliver J Land The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was not deemed to be a village green but did not exclude the possibility that it actually was Commons Registration Act 1965 10 1 Citers Â Daulia Ltd v Four Millbank Nominees Ltd [1978] 1 Ch 231 1978 Land, Contract In a contract the Defendants promised certain properties to whoever first arrived with the requisite draft contract and bankers drafts. The Plaintiffs did. Held: They failed in their claim. It involved a unilateral contract and the Defendants' oral promises was expressly made subject to contract, but the Court decided the dispute by reference to the central consideration that the contract concerned the disposition of an interest in land to which section 40 of the Law of Property Act applied. Law of Property Act 1925 40 1 Citers Â Â Methuen-Campbell v Walters; CA 1978 - [1978] 2 EGLR 58; [1979] 1 All ER 606; [1979] QB 525 Â Penfold and Penfold v Cooke (1978) 128 NLJ 736 1978 Commonwealth, Land, Contract (New Zealand) There can be no boundary agreement unless it constitutes a genuine attempt to resolve a disputed boundary line. A boundary agreement gave one party as much as three quarters of an acre of land. The court thought that the judge was not justified in drawing an inference that the parties had agreed that the position where a fence was placed was the boundary between them. 1 Citers Â Â Laing Homes Ltd v Eastleigh Borough Council; LT 1978 - (1978) 250 EG Â Appleby v Ireland [1978] RVR 156 1978 Land, Damages "the multiplier that has come to be regarded as fair and reasonable as between a dispossessed trader and an acquiring authority is 3YP of ascertained net profit, assuming the business to have been trading at a steady level of profitability and from its own freehold premises". 1 Citers Â Dukart v District of Surrey and Others (1978) 86 DLR 609 1978 Land Supreme Court of Canada - The Court considered an easement allowing free access to the waters of the bay. 1 Citers Â Laurence v Lexcourt Holdings Ltd [1978] 1 WLR 1128; [1978] 2 All ER 810 1978 ChD Dillon QC Contract, Land The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years. Held: There had been a misrepresentation by the lessors which entitled the lessees to rescind the agreement. Dealing with an alternative plea of common mistake, the court followed Solle v Butcher and Grist v Bailey in holding that the lease could be rescinded on the ground that it had been concluded under a mistake which was fundamental. The defendant's failure to make the search which would have disclosed the mistake did not disentitle them from relying on their mistake. 1 Citers Â Cole v Rose [1978] 3 All ER 1121 1978 Mervyn Davies QC J Contract, Land The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price. Held: The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies J said: "With those observations in mind, it seems that one can contemplate an order under s 49(2) only if there are some special circumstances in the particular matter, being circumstances that suggest that it is perhaps unfair or inequitable that the purchaser should lose his deposit. I cannot see any special circumstances in the present case. It is a straightforward case of a contract for sale that was not completed because the purchaser could not find the purchase price in time." Law of Property Act 1925 49(2) 1 Cites 1 Citers Â Woolfson v Strathclyde Regional Council [1978] UKHL 5; [1979] JPL 169; (1978) 248 EG 777; 1978 SC (HL) 90; 1978 SLT 159; (1979) 38 P & CR 521 15 Feb 1978 HL Wilberforce, Fraser of Tulleybelton, Killowen, Kinkel LL Land, Scotland, Company The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name. Held: The House declined to allow the principal shareholder of a company to recover compensation for the compulsory purchase of a property which the company occupied. the separate personality of a company is a real thing. Lord Keith observed that "it is appropriate to pierce the corporate veil only where special circumstances exist indicating that it is a mere facade concealing the true facts." Where the evidence shows that a company has been used as a vehicle or device for receiving monies wrongly paid out of a claimant company in breach of a defendant's duty to that company, the receipt by the third party vehicle will be treated as the receipt by the defendant. 1 Citers [ Bailii ] Â Allen and Another v Greenwood and Another 16 Oct 1978 CA Buckley, Orr and Goff L.JJ Land, Limitation cw Easement - Prescription - Right to light - Greenhouse - Claim for sufficient light to cultivate plants - Whether specially high amount of light - Whether right to extraordinary amount of light capable of being acquired by prescription - Whether right is to light for illumination only or capable of including sun's warmth The claimants greenhouse had been in the same position for over 20 years. They complained about work on the defendant neighbour's land which interfered with the rights of light they had acquired. Held: The Act set the standard for the easement acquired by prescription as the extent required for the use which had been made. The greenhouse required extra light, and that was the extent of the easement acquired. Prescription Act 1832 3 1 Cites [ lip ] Â Â Quennell v Maltby; CA 15-Nov-1978 - [1979] 1 WLR 318; [1979] 1 All ER 568; [1978] EWCA Civ 1 Â Â Pascoe v Turner; CA 1-Dec-1978 - [1979] 1 WLR 431; [1978] EWCA Civ 2; [1979] 2 All ER 945 Â Singh v Nazeer [1979] Ch 474 1979 Sir Robert Megarry VC Land, Litigation Practice Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it . 1 Citers Â Leonidis v Thames Water Authority (1979) 251 EG 669 1979 Parker J Land, Damages The court considered the liability of an authority executing works under authority of the Act for damages for disturbance: “if a private individual had done what the defendants did in the present case the claimant would have had a good cause of action ... .”. Public Health Act 1936 1 Citers Â Universal Corporation v Five Ways Properties Limited [1979] All ER 552 1979 CA Buckley LJ, Eveleigh LJ Contract, Land The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds. There was no attempt to exclude section 49(2) and the purchaser applied under that section for the repayment of the deposit. Held: The application for a strike out failed. The court considered the jurisdiction to order the return of a deposit paid under a contract for the sale of land. Buckley LJ said: "a discretion which must, of course, be exercised judicially, and with regard to all relevant considerations, including the very important consideration of the terms of the contract into which the parties have chosen to enter . . . the jurisdiction is one to be exercised where the justice of case requires. In this connection I take the word "justice" to be used in a wide sense, indicating that repayment must be ordered in any circumstances which make this the fairest course between the two parties." and "I prefer to the judge's approach to the construction of this subsection the approach of Megarry V-C who has expressed the view that the jurisdiction is one to be exercised where the justice of the case requires: see what he said in Schindler v Pigault. In this connection I take the word 'justice' to be used in a wide sense, indicating that repayment must be ordered in any circumstances which makes this the fairest course between the two parties. It is, I think, relevant in the present case that condition 22 of the national conditions does not confer on the vendor an unqualified right to forfeit a deposit. The words in para 3 of the conditions are ". . the purchaser's deposit may be forfeited (unless the court otherwise directs)". This formula may well have been adopted with the terms of section 49(2) in mind. However that may be, in my view the language makes clear that the vendor does not have an absolute right to retain the deposit paid by a purchaser who is in default under the condition." Eveleigh LJ said that the limitation applied by the judge was not "plain and obvious". Law of Property Act 1925 49(2) 1 Cites 1 Citers Â Dicconson Holdings Ltd v St Helens Metropolitan Borough (1979) 249 EG 1075 1979 Land 1 Citers Â Melwood Units Pty Ltd v- Commissioner of Main Roads [1979] AC 426 1979 PC Lord Russell of Killowen Land, Commonwealth, Damages The board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was reasonable to assume that a strip of the appellant’s land would be acquired for the expressway. The Land Appeal Court assessed compensation on the basis that the value of the land was to be arrived at by adjusting the price paid by the appellant for it in the light of the proposal. The Full Court of the Supreme Court of Queensland took the view that the question of the status and effect of the expressway proposal raised issues of fact upon the valuation but no question of law. Held. A failure to properly apply the Point Gourde principle did disclose a question of law. The Pointe Gourde principle is part of the "common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition." The principle operates both with respect to the consequential enhancement and adverse effect of a scheme for public works upon resumed land. A resuming authority cannot by its project of resumption destroy the potential for the highest and best use of the land and then resume land severing it from part of the previous holding, on the basis that the destroyed potential never existed. The principle remains applicable where planning permission is refused for development for the highest and best use of the whole of the land, because of the apprehended use of part of the land for a public purpose. Lord Russell of Killowen said: "Under the principle in Point (sic) Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] A.C. 565 the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships' opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the [land to be resumed] and then resume and sever on the basis that the destroyed potential had never existed." 1 Citers Â Jackson v Bishop (1979) 48 P &CR 57 1979 CA Bridge LJ Land, Contract Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground: "It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result." 1 Citers Â Â Suffolk County Council v Mason; HL 1979 - [1979] AC 705; [1979] 2 All ER 369 Â Regina v Surrey County Council, ex parte Send Parish Council (1979) 40 P&CR 390 1979 Land Under the section, the highway authority has duties when informed by a parish council that a highway has been unlawfully stopped. The highway authority must, "unless satisfied that the representations are incorrect", take proper proceedings accordingly. It is not for the court to decide whether there is a public footpath or not: the question is whether there is sufficiently strong evidence on which the highway authority could reasonably have decided that a public footpath existed. Highways Act 1959 1 Citers Â Armia Ltd v Daejan Developments Ltd [1979] UKHL 8; 1979 SLT 147; 1979 SC (HL) 56 21 Feb 1979 HL Diplock, Edmund-Davies, Fraser of Tullybelton LL Contract, Land The respondents had sought specific implement of an obligation under missives for the payment of the purchase price of land. Held: There can be no abandonment of a right by way of confession unless the party concerned is aware that he has the right in question and acts in such a way as to show that he has in fact abandoned it. Lord Keith of Kinkel he set out the definition of waiver and the courts approach thereto: "The word 'waiver' connotes the abandonment of a right. (See: Banning v Wright [1972] 1 WLR 972 per Lord Hailsham of St Marylebone LC at p. 979, Lord Reid at p. 981). The abandonment may be express, or it may be inferred from the facts and circumstances of the case . . I conclude from these cases that the question whether or not there has been a waiver of a right is a question of fact, to be determined objectively upon a consideration of all the relevant evidence." [ Bailii ] Â Â Dorothy Roulstone v O L Panton (Administrator of the Estate of Olive Hinds); PC 27-Jul-1979 - [1979] UKPC 36; [1979] 1 WLR 1465 Â Sharpe Re, Ex parte Trustee of the Bankrupt v Sharpe [1980] 1 WLR 219; (1980) 39 P & CR 459; [1980] 1 All ER 190 30 Jul 1979 ChD Browne-Wilkinson J Insolvency, Land, Trusts A couple lived in a maisonette with their aunt. The property had been purchased in the name of the husband but the aunt had contributed a partial sum towards the purchase price, while the rest of the amount was raised by way of a mortgage. The couple subsequently went bankrupt and the aunt claimed to be entitled to a proprietary interest in the maisonette by means of a resulting trust presumed from her contribution to the purchase price. Held: The money had in fact been advanced by way of a loan with the intention that it be repaid. She was, therefore, not entitled to any share of the equitable interest of the property. Monies advanced by way of loan are not, on this basis alone to be treated as contributions to the purchase price of property so that the lender acquires a beneficial interest in that property as a result. A constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust. Browne-Wilkinson J said: "I will first consider whether she has established an equitable interest in the property and its proceeds of sale by virtue of having provided the bulk of the purchase money, that is to say, has she an interest under a resulting trust? I have no doubt that she has not established any such interest. It is clear that the parties never worked out in any detail what was the legal relationship between them, but no one has suggested that Mrs. Johnson advanced the money to the debtor otherwise than by way of gift or loan. In his public examination, the debtor suggested that the monies were a gift, but I find as a fact that the monies were advanced by way of loan." 1 Citers Â MEPC Ltd v Christian-Edwards [1981] AC 205; [1979] 3 All ER 752 8 Nov 1979 HL Lord Russell of Killowen, Lord Wilberforce, Viscount Dilhorne, Lord Salmon, Lord keith of Kinkel Land The testator had granted an option to his son, and in his will directed that if he did not exercise it, he should be granted a lease. A later deed then recited that the will had been varied by an agreement. That deed was referred to indirectly many years later, and the purchaser objected that the unfulfilled contract was a flaw in the title. Held: The House was asked whether the seller had deduced a title good enough to be accepted. Lord Russell of Killowen said that a purchaser is entitled to be satisfied that: "that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser." 1 Citers Â Domb and Another v Isoz [1980] 2 WLR 565; [1980] Ch 548; [1980] 1 All ER 942 29 Nov 1979 CA Buckley, Bridge and Templeman LJJ Legal Professions, Contract, Land, Agency In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor's solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor's solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract. Held: A contract had been created. The solicitor had his client's authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance. Buckley LJ: "the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party's solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange." BRIDGE LJ: "A solicitor acting for a vendor or a purchaser who holds his client's signed part of the contract has his client's ostensible authority to effect exchange of contracts." Templeman LJ: "In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law." 1 Cites [ lip ] Â
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Land - From: 1970 To: 1979