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Land - From: 1980 To: 1984

This page lists 69 cases, and was prepared on 02 April 2018.

 
Sherbrooke v Dipple (1980) 41 P & CR 173
1980


Land, Contract
Parties to a conveyancing context can get rid of the qualification "subject to contract" only if either they both expressly agree that it should be expunged or if such an agreement can be necessarily implied.
1 Citers



 
 Federated Homes Ltd v Mill Lodge Properties Ltd; CA 1980 - [1980] 1 WLR 594; [1980] 1 All ER 371; [1979] EWCA Civ 3
 
University of Essex v Djemal and others [1980] 1 WLR 1301
1980
CA
Buckley LJ
Litigation Practice, Land
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just prior to the hearing before the judge the students vacated Level Six but left behind a note threatening "further direct action" against the university unless their demands were met. The university proceeded with its application but the judge refused to make an order for possession other than in relation to Level Six. The words of Order 113, R.S.C. 1965, restricted the court's jurisdiction to making an order for possession of such part of the premises as was being or had been wrongly occupied. The university's appeal was allowed and an order was substituted for possession.
Buckley LJ said: "I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner's property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case. In the present case there was, when the matter was before the judge, a threat to take what is described as "further direct action", which presumably meant similar action to the action which had already been taken, action which might be taken in respect of any part of the university property. In those circumstances it would, in my judgment, have been open to the judge to have made an order extending to the whole of the university property, or he might have made an order extending to particular parts, such as the administrative offices, of the university property. In my judgment he was in error in thinking that he was bound, by the terms of R.S.C., Ord. 113, to restrict his order to that particular part of the university property of which the students were then in actual adverse possession."
Rules of the Supreme Court Orde 113
1 Citers


 
Nickerson v Barraclough (1) Unreported, 1980
1980
ChD
Vice-Chancellor Megarry J
Land
The court considered an assertion that a right of necessity was implied into a deed. Held: "In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the express negativing of the grant of any way in the second limb of paragraph 7 of the first schedule, despite the need for some grant of a way that appeared from the surrounding circumstances as disclosed by the conveyance itself
I find great difficulty in holding that there has been granted by implication something that the grant expressly negatives
I find it almost impossible to imply a grant in the teeth of the express negation of any grant; and the grant of a way of necessity seems plainly to be one form of implied grant. There is, however, one consideration that is peculiar to ways of necessity that seems to be in point. During argument, I was referred to a sentence in Gale on Easements (14th. Edition 1972), page 177 on the subject of ways of necessity, which runs: 'The principle appears to be based on the idea that the neglect of agricultural land is contrary to public policy': and for this two old decisions are cited".
and
"This seems to me to raise a novel point of some difficulty and importance. Put shortly, it is whether on a grant of land in circumstances which otherwise would create a way of necessity or a way implied from the common intention of the parties based on a necessity apparent from the deeds it is open to the parties to negative the creation of such a way by some express term in the conveyance. I cannot think that the point is in any way confined to agricultural land: whatever the actual or prospective use of the land, the question arises whether in the absence of special circumstances public policy will permit the parties to a conveyance to make land inaccessible save by air transport and thus unusable. As applied to the present case, the question would be whether the Court should impose on the second limb of paragraph 7 of the first schedule a qualification which would exclude from its operation any way required for access for building purposes which would otherwise be implied. As the evidence stands, apart from paragraph 7 I would have no hesitation in holding that in the circumstances of the 1906 conveyance there was an implied grant of a way to plot 78a for building purposes; for the contemplated use of the plot was for those purposes, and so the extent of the way is to be measured by those purposes: see Gayford v. Moffatt (1868) 4 Ch. Appeals 133 at 136. As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation.
However, in the absence of full argument on the point I do not think that I ought to decide it".
Law of Property Act 1925 62
1 Cites

1 Citers



 
 Raineri v Miles; HL 1980 - [1981] AC 1050; [1980] 2 All ER 145
 
Prosper Homes Ltd v Hambros Bank Executor and Trustee Co Ltd (1980) 39 P & CR 395; (1979) 39 P & CR 395
1980

Browne-Wilkinson J
Contract, Land
The court considered whether a contract had been validly rescinded. The validity of a completion notice was challenged on the ground that the vendors were not ready, able and willing to complete the sale when the notice was served because they were in breach of their fiduciary obligation to look after the subject property. Without informing the purchasers, the vendors had permitted a change in the lessee and user of part of the property. Held: It was completely uncommercial to require a vendor to be considered unable or unwilling or unready to complete merely because he may have failed in some respect to carry out his duty between contract and completion in looking after the property. That default would sound in damages.
Browne-Wilkinson J said: "the fact that a vendor may have failed in some respect to carry out his duty between contract and completion in looking after the property does not mean that he is unable or unwilling or unready to complete . . If any damage has occurred in the interim the vendor would have to make it good in damages. It does not prevent a completion of the contract."
1 Citers


 
Afzal v Rochdale Metropolitan Borough Council [1980] RVR 165
1980


Land

1 Citers


 
Hoggett v Hoggett (1980) 39 P & CR 121
1980
CA
Sir David Cairns
Land
The court considered whether there had been an effective surrender of a property at law. Held: Where a person claims to have been in occupation of land at law, but was not physically present, it was necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy.
1 Cites

1 Citers


 
Pritchard v Briggs [1980] CLY 1563; [1980] Ch 338
1980
CA
Goff LJ, Templeman LJ, Stephenson LJ
Land, Contract
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor's successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported compliance with the right of pre-emption. A year later the plaintiff purported to exercise his option and claimed to be entitled to the retained land in priority to the defendants. Walton J dismissed the claim. Held: The appeal succeeded. The grant of the right of pre-emption did not confer an interest in land and the grant of the option did not trigger the right of pre-emption. The grantee of the right of pre-emption had a right to call for a conveyance of the land if the conditions on which the right is exercisable are fulfilled. Section 186 appeared to have been drafted under a misconception of the law.
Goff LJ said: A party does not avoid liability simply because through ignorance of the law he does not realise that his conduct is tortious. Goff LJ drew no distinction between the criminal and the civil law, and applied the criminal test in the civil context. Stephenson LJ expressly agreed with the judgment of Goff LJ.
Templeman LJ said: "Thus the relationship of vendor and purchaser could not be established unless the [vendors] chose to offer the retained lands to the holder of the right of pre-emption or, in breach of covenant, contracted to sell the retained lands to a third party without first offering the lands to the option-holder... If and when these conditions were fulfilled, the holder of the right of pre-emption would be entitled to buy and therefore entitled to an equitable interest." Stephenson LJ: "...what is granted is a right of pre-emption, [and] the true construction of the grant is only properly called an option when the will of the grantor turns it into an option by deciding to sell and thereby binding the grantor to offer it for sale to the grantee. That it thereby becomes an interest in land is a change in the nature of the right...to which I see no insuperable objection in logic or in principle."
Law of Property Act 1925 186
1 Cites

1 Citers


 
Nickerson v Barraclough (2) [1980] ChD 325
2 Jan 1980
ChD
Vice Chancellor
Land
The Vice-Chancellor said: "if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the creation of such a way from, being negatived by an express term in the grant?" and after discussing case law he said: "If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access.
Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result.
Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: 'The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made' "
And "This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed. Nothing, however, was done to negative any way of necessity. I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes".
The Vice-Chancellor explained exactly what he meant by a "way of necessity" in that passage: "a way implied from the common intention of the parties, based on a necessity apparent from the deeds".
1 Cites

1 Citers



 
 Midland Bank Trust Co Ltd v Green (No 1); HL 11-Dec-1980 - [1981] AC 513; [1980] UKHL 7
 
Nickerson v Barraclough [1981] Ch 426
13 Dec 1980
CA
Brightman LJ, Buckley LJ
Land
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public policy could not assist the court in that task. Brightman LJ said: "In this court we have heard a great deal of argument about ways of necessity – what is the basis, how they can be acquired and whether they can be lost.
I have come to the conclusion that the doctrine of way of necessity is not founded on public policy at all but upon an implication from the circumstances. I accept that there are reported cases, and textbooks, in which public policy is suggested as a possible foundation of the doctrine, but such a judgement is not, in my opinion, correct. It is well established that a way of necessity is never found to exist except in association with a grant of land."
Buckley LJ said: "I entirely agree with the judgment which has been delivered by Brightman LJ. In particular, in my judgment the law relating to ways of necessity rests not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted.
Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances."
1 Cites

1 Citers

[ Bailii ]

 
 Swiss Bank Corporation v Lloyds Bank Ltd; CA 1981 - [1982] AC 584; [1981] 2 All ER 449; [1981] 2 WLR 893

 
 Spall v Owen; 1981 - (1981) 44 P & CR 36

 
 Lamb v Camden London Borough Council; 1981 - [1981] 2 All ER 408; [1981] 2 WLR 1038
 
Lambert v Roberts [1981] 72 Cr App R 223
1981
QBD

Land, Police
Police officers came into a garden to obtain a breath test. There had been repeated statements by the owner of the premises that the officers, who were on the driveway of his house, were on private property and that he believed the police had no right to administer a breath test in those circumstances. Held: The officers came onto the garden by virtue of an implied licence, but (Donaldson LJ) ". . . it is a licence which is revocable without prior notice. In the present case the justices have found that the defendant's statement that he was on private property and that the police officers were trespassing was such a notice. I am quite unable to say that this was wrong, although an alternative view of the defendant's conduct, taken as a whole, is that he was simply disputing the right of the police officers to require a breath test on private property but was not effectively revoking their licence."
1 Citers


 
Cargill v Gotts [1981] 1 WLR 441; [1981] CLY 742
1981
CA
Templeman LJ, Lawton LJ, Brandon LJ
Land, Utilities
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: "The Court will not recognise an easement established by illegal activity". The court considered the effect of the change in extent of usage. The dominant owner had obtained by prescription a right to extract water from a pond on the servient land for the purpose of watering his animals on the dominant land. While remaining agricultural in nature, the use of the dominant land subsequently changed to arable, and there was a resultant substantial increase in the water taken from the servient pond, because the water was now used for crop-spraying. This was held to be a permissible enjoyment of the easement. "Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired." and "In my judgment, it is a mistake to concentrate on gallonage and detailed user."
Water Resources Act 1963
1 Citers



 
 Swales v Cox; CA 1981 - [1981] QB 849; [1981] 1 All ER 1115; [1981] 2 WLR 814
 
Cedar Holdings Ltd v Green [1981] Ch 129
1981
CA
Goff LJ, Buckley LJ
Land
A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee sought a declaration that by executing the charge, the husband charged his beneficial interest in the property under the statutory trusts for sale, arguing that section 63 of the 1925 Act - which states that every conveyance is effective to pass all the interest to be conveyed and which he has power to convey - had that effect. Alternatively, the plaintiff argued that where a vendor contracts to grant a greater interest than he is competent to grant, the purchaser can elect to affirm the contract and compel the guarantor to grant such lesser interest as he could grant. Held: Under section 63 a beneficial interest in the proceeds of sale of land held upon the statutory trusts for sale is not an interest in land within the meaning of section 63. On the alternative argument the purchaser cannot demand a grant of some different subject matter in lieu of that contracted for.
The court found a further ground for defeating the plaintiff under Thomas v Dering and found that specific performance would prejudice the wife in two ways, one of which was that whether or not the court would ultimately order a sale under s.30 of the Law of Property Act 1925 such specific performance would be prejudicial to her position in proceedings under s.30.
Buckley LJ saw no judicial authority on the meaning and effect of the expression "interest in the property conveyed" in Section 63, and said: "That section replaced Section 63 of the Conveyancing Act 1881 which was in identical terms. The purpose of that section was clearly to ensure that a conveyance should operate to convey all that the grantor could convey in relation to the subject matter, notwithstanding that the language of the conveyance might not be in every respect apt to produce that result, and to eliminate the need for an "all estate" clause of the kind which conveyancers had previously been accustomed to include in conveyances."
and: "In Section 63 we are concerned with the expression "interest in the property conveyed or expressed or intended so to be". This, as it seems to me, focuses attention upon the particular subject matter conveyed or expressed or intended to be conveyed. If, as in the present case, that subject matter is land it would seem to me a strong thing to construe the word "interest" in such a way as to make a conveyance effectual to pass property which is not land in any sense.
The device of the statutory trust for sale in respect of property vested in co-owners must have been very prominent in the minds of those who framed the 1925 property legislation. Had they intended the Law of Property Act 1925 Section 63 to have a different kind of operation from that which the Conveyancing Act 1881, Section 63, had been designed to achieve, I would certainly have expected some indication of this fact in Section 63. Instead, Section 63 of the Act of 1881 was left intact by the amending Act (The Law of Property Act 1922) and was consolidated without any change in its language into the Act of 1925. In my judgment, upon the true construction of Section 63 the beneficial interest in the proceeds of sale of land held upon the statutory trusts is not an interest in that land within the meaning of the section and a conveyance of that land is not effectual to pass a beneficial interest in the proceeds of sale.
It is not surprising that we have not been referred to any pre-1926 decision in which Section 63 of the Act of 1881 was held to operate in relation to an interest in the proceeds of sale of land held on trusts to sale.
The Plaintiffs say that it would be strange if the effect of Section 63, in conjunction with the 1925 reform of real property law, was that, whereas a conveyance executed on December 31st 1925, of the whole interest in land of which the sole grantor was one of two or more co-owners would be effectual to pass his undivided share of the property, a similar conveyance executed on January the 1st 1926, would not be effectual to pass that which on that date became substituted for his previous undivided share in the land, viz., his undivided share in the proceeds of sale. The second defendant, on the other hand, contends that the historic function of Section 63 and of its predecessor, Section 63 of the Conveyancing Act 1881, is and was connected with the normal operations of conveyancing and that the section is not, and never has been designed to deal with matters which have no relation to the title in the subject matter of a conveyance which the grantee acquires under the conveyance, and in particular with matters which since 1925 are for conveyancing purposes behind a curtain for a trust for sale."
Law of Property Act 1925 63
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Wheeler v Copes [1981] 3 All ER 405
1981
QBD
Chapman J
Personal Injury, Health and Safety, Land
A labour-only subcontractor was provided with an inadequate ladder by the defendant. He was injured using it. Held: The defendant was found liable.
However, Chapman J said: "The plaintiff puts his case to a considerable extent on the Occupiers' Liability Act 1957, but it seems to me that there may be considerable difficulty in relation to that because the Act is dealing with an occupier. It is true that it covers moveable structures, such as vessels, vehicles and aircraft. I do not doubt that in appropriate circumstances it could apply to a ladder, but I see considerable difficulty in saying that once the defendant had handed the ladder over to the plaintiff and his partner for the purpose of the bricklaying the defendant was still the occupier of this ladder."
Occupiers' Liability Act 1957
1 Citers


 
Blount v Layard [1891] 2 Ch 681
1981

Bowen LJ
Land
Public use rights to navigate or (less commonly) to fish, where secured by statute or user, were not inconsistent with private ownership of the land beneath the water.
Bowen LJ said: "that nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood."
1 Citers



 
 Green v Green; 1981 - [1981] 1 WLR 391

 
 Westminster City Council v Haymarket Publishing Limited; CA 1981 - [1981] 1 WLR 677; [1981] 2 All ER 555

 
 Barnett v Hassett; 1981 - [1982] 1 All ER 80; [1981] 1 WLR 1385
 
Scarfe v Adams [1981] 1 All ER 843
1981
CA
Cumming-Bruce LJ, Griffith LJ
Land, Contract
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was part of the land comprised in the specified title). The coiurt had to identify what land was transferred. Held: The court criticised the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.
Cumming-Bruce LJ: ". . . the question raised in these proceedings is only the proper construction to the Plaintiff’s Transfer Deed. And the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. Counsel for the Plaintiff submits that this deed is uncertain, contradictory and ambiguous. Counsel in the court below invited the judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made, and the true effect of the plan to which they referred as showing the land transferred. The judge admitted extrinsic evidence de bene esse but decided that there was no such uncertainty or ambiguity as to make it right to admit that evidence as an aid to construction. . . The learned deputy judge said that he had derived most assistance from the cases of Grigsby v Melville [1973] 3 All ER 455 and Neilson v Poole [1969] 20 P and CR 909. The judge was wrong in thinking that Grigsby was an action for rectification. The decision was founded on the determination that, as a matter of construction, the deed was clear, certain and unambiguous, so there was no room for extrinsic evidence about the inconvenient consequences. Neilsen v Poole was a case in which Megarry J as a matter of construction of the conveyance with plan attached, decided that it was uncertain and that therefore it was right to admit and consider extrinsic evidence. Having done so, Megarry J decided that the conveyance as a whole and the dividing line on the plan showed that the dividing line was along a line drawn on the plan, and the other conveyances supported the conclusion. I have difficulty in understanding how the decision of either case or the reasoning of Megarry J supported the deputy judge’s conclusion.

. . . "The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers."
Griffiths LJ: “Although we have had the benefit of a fairly extensive citation of authority, I do not find it necessary to review these authorities, as I regard the legal principle to be applied in this appeal as well established and the cases cited as illustrations of the practical application of that principle. The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interests to transfer it, then extrinsic evidence is admissible so the court may (to use the words of Lord Parker in Eastwood v Ashton [l915] AC 900 at 913) ‘do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used.’
1 Cites

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Nickerson v Barraclough (1981) 125 SJ 185; [1981] 1 Ch 246
2 Jan 1981
CA
Megarry V-C
Land
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by necessity. Held: The defendant's appeal succeeded. Public policy could play no part in the construction of a document between private parties, and the doctrine of necessity was derived from the factual circumstances only. The condition in the 1906 grant had not been fulfilled. The plaintiff was entitled only to the easements as they existed at the time of a 1922 conveyance and were therefore implied into it by section 62.
Megarry V-C said: "take as an example a case where Plot A consists of a footpath some 3 feet wide and 100 yards long, running from land near a public highway up to Plot B. If there is an express grant of a right of way to Plot A over land which lies between Plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of Plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to Plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means to access to Plot A. for the purposes for which Plot A is used, namely, as a means of access to Plot B. In the result, the way can be used a means of access to Plot B via Plot A, notwithstanding Harris v Flower. If Plot A is not used as an actual means of access to Plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply."
Law of Property Act 1925 62
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1 Citers



 
 Island Holdings Ltd v Birchington Engineering Co Ltd; 7-Jul-1981 - Unreported, 7 July 1981

 
 Hyde v Pearce; CA 18-Nov-1981 - [1982] 1 WLR 560; [1981] EWCA Civ 3
 
Attorney-General ex relater Sutcliffe and Others v Calderdale Borough Council (1982) 46 P&CR 399
1982
CA
Stephenson, Ackner LJJ and Sir Sebag Shaw
Planning, Land
The court discussed whether a terrace of cottages was within the curtilage of an old factory which was a listed building. At first instance, Skinner J had held that they were, and that permission could not be granted for their demolition. The Council appealed. Held: The appeal failed.
Stephenson LJ said: "The terrace has not been taken out of the curtilage by the changes which have taken place, and remain so closely related physically or geographically to the mill as to constitute with it a single unit and to be comprised within its curtilage in the sense that those words are used in this subsection."
and "Three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building . . whatever may be the strict conveyancing interpretation of the ancient and somewhat obscure word 'curtilage'. They are (1) the physical 'layout' of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage."
Changes in ownership and changes in use of the cottages in more recent times had not taken the cottages out of the curtilage of the mill.
Town & Country Planning Act 1971 54(9)
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Shropshire County Council v Edwards (1982) 46 P & CR 270
1982

Rubin J
Land
If in the instrument creating a restrictive covenant before 1926, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can clearly be established, then the benefit of the covenant will be annexed to that land and run with it, notwithstanding the absence of express words of annexation.
1 Citers



 
 Sudbrook Trading Estate Ltd v Eggleton; HL 1982 - [1983] 1 AC 444; [1982] 3 All ER 1; [1982] 3 WLR 315; 1982] ANZ Conv R 541

 
 Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd; CA 1982 - [1982] QB 84; [1981] 1 All ER 923; [1981] 2 WLR 554; [1982] 1 Lloyds Rep 27

 
 Standard Chartered Bank Ltd v Walker; CA 1982 - [1982] 1 WLR 1410; [1982] 3 All ER 938
 
Dennis v McDonald [1982] Fam 63
1982
CA
Purchas J, Sir John Arnold P
Land, Equity
The plaintiff and defendant had lived together in a house held in their joint names. The woman left the home as a result of the man's violence, and he kept up the mortgage payments. Held: If in order to do equity between the parties an occupation rent should be paid, this would be declared and the appropriate inquiry ordered. Only in cases where the tenants in common not in occupation were in a position to enjoy their right to occupy but chose not to do so voluntarily, and were not excluded by any relevant factor, would the tenant in common in occupation be entitled to do so free of liability to pay an occupation rent. He held that the woman was not a free agent. She was caused to leave the family home as a result of the violence or threatened violence of the defendant. She fell within the category of person excluded from the property "the basic principle that a tenant in common is not liable to pay an occupation rent by virtue merely of his being in sole occupation of the property does not apply in the case where an association similar to a matrimonial association has broken down and one party is, for practical purposes, excluded from the family home."
1 Citers


 
Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P&CR 233
1982
CA
Forbes J
Land, Planning
The developer originally sought permission for 450 homes. That was refused. Before the appeal, it proposed an alternative with 250 homes to be adopted only if the size of the development were considered to be the critical factor. The inspector decided for the smaller scale application. The developer appealed, but the Secretary of State dismissed the appeal saying in addition that it was improper to allow the smaller scale development where the development was not severable. Held: It had been permissible for the Inspector to grant a lesser permission than had been applied for, by the use of conditions and provided the effect was not to alter the substance of the application, which was a matter on which the Secretary of State had to exercise his judgment. The court went on to explain how the judgment should be reached: "The main but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation." Where a proposed deveeopment had already been through full consultation, and opposition had been total, it was not necessary to consult again on the smaller proposal.
The court considered the additional difficulties in commons application cases of allowing amendments on apppeal because of the need to allow for the public interest.
Commons Registration Act 1965 - Town amnd Country Planning ACt 1971
1 Citers



 
 Henderson v Volk; 1982 - (1982) 35 OR (2d) 379

 
 Elston v Dore; 1982 - (1982) ALR 577
 
Walker v Boyle [1982] 1 WLR 495; [1982] 1 All ER 634
1982

Dillon J
Land, Contract
A property was sold subject to the National Conditions of Sale (19th edition). Condition 17(1) of the conditions provided that "no error, the statement or omission in any preliminary answer concerning the property . . shall annul the sale". There had been a pre-existing boundary dispute with a neighbour which was not disclosed in the course of the preliminary enquiries before contract. Held: The vendor was not entitled in equity to rely on this condition. The National Conditions of sale do not exclude liability for fraud.
As to the 1967 Act: "I do not regard condition 17 as satisfying that requirement in the circumstances of this case. Another way of putting it is that Mrs Boyle has not shown that it does satisfy that requirement."
The court also refused relief for specific performance in view of the claimant's innocent misrepresentation, even if that mistake was unilateral and not induced by the claimant's misrepresentation: "It seems to me that the equitable barrier to specific performance extends not merely to matters of title where the vendor has failed to disclose defects known to him in his own title, but also to misrepresentation where the vendor has, albeit innocently, misdescribed the property or made some other misrepresentation about the property, when the true facts were within his own knowledge. A trifling misrepresentation where the truth would have had no effect on the purchaser and the purchaser would have nonetheless entered into the contract, rests in a different category because there the contract has not been induced by the misrepresentation, but here, as I find, the purchaser would reasonably have refused to contract unless the boundary dispute, if disclosed to him, had first been resolved. Therefore, it seems to me that on equitable principles and consistently with the authorities I have mentioned, and consistently also with the fairly recent decision of Walton J in Faruqi v English Real Estates Ltd [1979] 1 WLR 963, the vendor, Mrs Boyle, is not entitled in equity to rely on condition 17 in the circumstances of this case."
Misrepresentation Act 1967 3
1 Citers



 
 Elias v George Sahely and Co (Barbados) Ltd; PC 1982 - [1983] 1 AC 646; [1982] 3 All ER 801; [1982] 3 WLR 956; [1983-84] ANZ Conv R 104; [1982] UKPC 31

 
 Haslemere Estates Ltd v Baker; 1982 - [1982] 3 All ER 525; [1982] 1 WLR 1109
 
Prest v Secretary of State for Wales (1982) 81 LGR 193
1982
CA
Lord Denning MR
Land, Constitutional
Lord Denning MR said: "I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands . ."
Watkins LJ said: "The taking of a person's land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought."
1 Citers



 
 Holden v White; CA 1982 - [1982] 2 WLR 1030
 
Lake District Special Planning Board, ex parte Bernstein Times, 03 February 1982
3 Feb 1982


Land
A diversion of a footpath must be along an entirely new path, and not an existing way.
1 Citers


 
Habib Bank Ltd v Gulabhai Naginbas Tailor [1982] EWCA Civ 6; [1982] 3 All ER 561; [1982] 1 WLR 1218
25 May 1982
CA
Oliver LJ
Land, Banking
Appeal against mortgagee possession order. Held: S 36 relief is in practice to be limited to a restricted range of cases - "for, if the mortgagor was already in difficulties with his instalments, the chances of his being able to pay off the whole principal as well in a reasonable time must be considered fairly slim"
Administration of justice Act 1970 36
[ Bailii ]

 
 Sporrong and Lonnroth v Sweden; ECHR 23-Sep-1982 - 7152/75; [1983] 5 EHRR 35; [1982] ECHR 5; 7151/75
 
Gilbert v Spoor [1983] Ch 27
1983
CA
Eveleigh LJ
Land
In the case of an application to remove or vary covenants for a property within a building scheme, there is "a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are satisfied." The court rejected a suggestion that "practical benefits" were confined to financial factors, and held that loss of a landscape view, visible from land in the immediate vicinity of the objectors' properties, was a sufficient reason to refuse modification. Eveleigh LJ: "….the words…are used quite generally. The phrase 'any practical benefits of substantial value or advantage to them' is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather of a restriction which secures any practical benefits. The expression "any practical benefits" is so wide that I would require very compelling considerations before I felt able to limit it in the matter contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effect upon a broad basis."
Law of Property Act 1925 84
1 Citers


 
Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349
1983
HL
Lord Templeman
Land, Company
A company associated with the mortgagee purchased the land taken into possession by the mortgagee. The court considered the extent of its duties. Held: "The mortgagee and the company seeking to uphold the transaction must show that the sale was in good faith and that the mortgagee took reasonable precautions to obtain the best price reasonably obtainable at the time." It does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price.
1 Citers


 
Boots the Chemist Ltd v Street (1983) 268 EG 817
1983

Falconer J
Land
The plaintiff sought rectification of its lease. Held: The court ordered rectfication applying section 63(1): "I need not read any further. But [Counsel] submits, I think rightly so, that under that provision the transfer, which was a transfer of the freehold reversion, subject, of course, to the lease, from the original landlords to the present Plaintiffs, it is effective to pass such interest as there may be or may have been in the original landlords to have the lease rectified in the manner now sought to have it rectified."
Law of Property Act 1925 63(1)
1 Citers


 
Corpus Christi College Oxford v Gloucestershire County Council [1983] 1 QB 360
1983
CA
Lord Denning MR
Land
The court considered the result where the freehold of what had formerly been waste of the manor became severed from the lordship. Held: It ceased to be part of the manor. Lord Denning MR described the historical basis of the ownership of land by Lords of the manor: "In mediaeval times the manor was the nucleus of English rural life. It was an administrative unit of an extensive area of land. The whole of it was owned originally by the lord of the manor. He lived in the big house called the manor house. Attached to it were many acres of grassland and woodlands called the park. These were the "demesne lands" which were for the personal use of the lord of the manor. Dotted all round were the enclosed homes and land occupied by the "tenants of the manor." They held them by copyhold tenure. Their titles were entered in the court rolls of the manor. They were nearly equivalent to freehold, but the tenants were described as "tenants of the manor." The rest of the manorial lands were the "waste lands of the manor." The tenants of the manor had the right to graze their animals on the waste lands of the manor. Although the demesne land was personal to the lord of the manor, nevertheless he sometimes granted to the tenants of the manor the right to graze their animals on it, or they acquired it by custom. In such a case their right to graze on the demesne land was indistinguishable from their right to graze on the waste lands of the manor, so long as it remained open to them and uncultivated, although there might be hedges and gates to keep the cattle from straying. So much so that their rights over it became known as a "right of common" and the land became known as "common land."

In the course of time, however, the lordship of the manor became severed from the lands of the manor. This was where the lord of the manor sold off parcels of the land to purchasers. He might, for instance, sell off the demesne lands and convey them as a distinct property. Thenceforward the land ceased to form part of the manor and was held by a freeholder: see Delacherois v. Delacherois (1864) 11 H.L.Cas. 62 , 102-103 by Lord St. Leonards. But no such conveyance could adversely affect the rights of common of those who were entitled to them as tenants of the manor or otherwise. No lord of the manor could, by alienation, deprive those entitled of their rights over it or in respect of it: see Swayne's case (1609) 8 Co.Rep. 63a and Reg. v. Duchess of Buccleuch (1704) 1 Salk. 358."
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 Dalton, Weaton v Maple and Co.; CA 1983 - [1893] 3 Ch 48
 
Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349
1983
PC

Land
For a mortgagee in possession selling a property, it does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price.
1 Citers


 
Western Electric Ltd v Welsh Development Agency [1983] QB 796
1983


Contract, Land
An offer to grant a licence to occupy land may be accepted by taking up occupation.
1 Citers


 
In re Abbott [1983] 1 Ch 45
1983
ChD
Peter Gibson J
Family, Insolvency, Land
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or its implementation was void under section 42 which protected only a settlement made to a purchaser in good faith and for valuable consideration. The court dismissed the application saying the wife was such a purchaser. The trustee appealed. Held: The appeal was dismissed. The court accepted the submission of the wife's counsel that the compromise of a bona fide claim for ancillary relief can constitute the claimant a purchaser for valuable consideration of what he receives under the compromise, even though no interest in property is transferred by the purchaser and the consideration provided by the purchaser is not measurable in money. The Vice-Chancellor agreed.
Bankruptcy Act 1914 42(1)
1 Citers



 
 Harris v Goddard; CA 1983 - [1983] 3 All ER 242; [1983] 1 WLR 1203

 
 Dimsdale Developments (South East) Ltd v De Haan; 1983 - (1983) 47 P&CR 1
 
Stockport Metropolitan Borough Council v Alwiyah Developments [1983] 52 P&CR 278
1983
CA
Denning MR, Stephenson and Geoffrey Lane LJJ
Land, Damages
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they intended for a development of accommodation for the aged. The tribunal had refused the application under the limited benefit ground (regarding the impact as less than "serious" but "of real importance"), but allowed it under the public interest ground. Held: The measure of compensation payable on the compulsory acquisition of an easement is the diminution in value of the interest affected and not by reference to a reasonable price that could be extracted for the giving up of the right.
Lord Denning MR said: "So, we come back to the question: what is the basis or proper basis of compensation? It is simply to make up 'for [the] loss or disadvantage suffered' by the borough council. There is no method prescribed by the Act by which it is to be assessed; it is essentially a question of quantum. It is however, to be assessed for loss of amenities, loss of view and so forth, which are things which it is hard to assess in terms of money . . It is similar to compensation for pain and suffering." He referred to the Wrotham Park case and said: "The President looked at it in much the same way. He took a higher percentage. Instead of 5% he took 50%. He took the realisable development value and split it equally. That was, he said, fair to the parties. It was a method by which he was getting at the loss or disadvantage. I see no error of law in it. The loss or disadvantage is an intangible matter which is incapable of exact calculation in money, and he took a fair and sensible way of assessing it."
Stephenson LJ held that the proposed way of calculating compensation was not contrary to the Act or to authority. The modification had resulted in the council losing a benefit of "substantial value or advantage" for which they were entitled to "substantial compensation".
1 Cites

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Tate and Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; [1983] UKHL 2
24 Mar 1983
HL
Lord Templeman
Land, Nuisance
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel. Held: The riparian owners had no right to insist upon any particular water depth. Their rights were limited to the ordinary purposes of a riparian owner, such as taking water. However, the public right of navigation of the Thames had been infringed by the construction of the terminal, creating a public nuisance for which they were liable to the plaintiff. A defence of statutory authority would require the council to show that it had taken all reasonable care in the design of the terminal. It had not done so. Their liability extended also to the second jetty, since the creation of the channel also created a public navigation right over the new channel.
1 Cites

1 Citers

[ Bailii ]
 
Kuldip Kaur Chhokar v Harbhajan Singh Chhokar [1983] EWCA Civ 7; [1984] FLR 313; [1984] 14 Fam Law 269
1 Nov 1983
CA
Cumming-Bruce LJ, Reeve J
Land, Trusts

[ Bailii ]
 
Pretto And Others v Italy [1983] ECHR 15; 7984/77; (1983) 6 EHRR 182; (1984) 6 EHRR 182
8 Dec 1983
ECHR

Human Rights, Land
The court considered the value of court proceedings being public: "The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention."
1 Citers

[ Bailii ] - [ Bailii ]
 
First National Securities v Hegerty [1984] 3 WLR 769; [1984] 3 All ER 641
1984
CA
Stephenson LJ
Land, Family, Litigation Practice
The husband had forged his wife's signature on the loan application and on the charge of the house held by himself and his wife as joint tenants. He had left the country, and the plaintiff sought to enforce the charge, and ex parte obtained an order nisi charging the husband's interest in the house. The wife petitioned for divorce. The bank appealed the master's refusal to make the charging order absolute, and the High Court upheld the appeal and refused to allow the matter to transfer to the Family Division. Held: The wife's appeal failed. The judge had identified and considered the correct issues. The plaintiffs had not delayed their action, and had begun it before the divorce. Stephenson LJ said that the courts should not defeat claims from legitimate creditors by use of a matrimonial jurisdiction, though enforcement of a charging order might be deferred until any application under section 30 of the 1925 Act had been dealt with,
Law of Property Act 1925 30 - Matrimonial Causes Act 1973

 
Garland v Ralph Pay and Ransom [1984] 2 EGLR 147
1984

Nicholls J
Land, Insolvency
Receivers taking possession of a property are not under an obligation to make the property more attractive before marketing it.
1 Citers


 
Pugh v Howells [1984] 48 P&CR 298
1984
CA

Land
The court ordered a building to be demolished were the development had been speeded up and completed over a bank holiday weekend in order to present the plaintiff with a fait-accompli, having been warned that the proposed works would infringe a right of light.
1 Citers



 
 Chapman Lowry and Puttick v Chichester District Council; LT 1984 - (1984) 47 P&CR 674
 
Wiltshire County Council v Frazer (1984) 47 P&CR 69
1984
CA
Stephenson, May LJJ
Land, Litigation Practice
For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: "(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant ;
(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his)."
May LJ said: "It seems to me clear beyond a peradventure that no other interpretation of the facts is possible than that these defendants and the other persons unknown are wrongly in occupation of the highway. I think it matters not that each several caravan is at a separate point on the highway".
Rules of the Supreme Court Order 113
1 Citers


 
Thames Guaranty v Campbell [1984] 3 WLR 109; [1984] 2 All ER 585
1984
CA

Equity, Land
A married couple bought a house in joint names. The husband borrowed from T and agreed to charge the land. When the property had been registered, he ordered the solicitors to deposit the land certificate with T as security. T registered a notice on the register, and later extended their loans to H. When they sought to enforce the charge the wife obtained an order for the delivery up of the land certificate. Held: T's appeal failed. The letter from the husband had been only confirmation that he would deposit the land certificate. At that time the letter was executory only, and since it had been made without his wife's involvement or consent, an equitable charge had not arisen. The husband might be ordered to charge his own interest to T because of the bank's own part performance. The doctrine of part performance would require a balancing of any hardship it might cause to the respective parties, and the wife would suffer far more hardship than the bank. The husband had not had the authority to release the land certificate to the bank and it must be returned.

 
Graham v Philcox [1984] 1 QB 747
1984
CA
May LJ, Purchas LJ
Land
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had held that the easement had expired with the lease, saying that it was immaterial the right had been enjoyed by the occupier first under a five year tenancy, and thereafter (up to the time of the relevant conveyance) as statutory tenant: "He was undoubtedly using the right of way at that time. It was certainly an easement, right or advantage "reputed to appertain to the first floor flat" and was enjoyed with that part "of the land, houses or other buildings conveyed." I can find nothing in the wording of section 62(2) of the Act to indicate that the 'land conveyed' cannot include land subject to a lease or an adverse right of occupation by a tenant protected by statute. The easement, right or advantage is enjoyed with and appertains to the land, not to the statutory right of occupation... The grant by which the right of way was originally created was a term of five years; but there were no specific limitations to that grant. I agree with what has already been said by May L.J. in relation to Mr. Reid's submissions that the judge erred in considering the user of the way by the vendor rather than the user of the right of way with the land."
Law of Property Act 1925 62
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Re 6, 8, 10 and 12 Elm Avenue, New Milton; Ex parte New Forest District Council [1984] 1 WLR 1398; [1984] 3 All ER 632
1984
ChD
Scott J
Land, Damages
Scott J accepted Kirby as authority for the application of section 10 to works on land acquired by agreement. In an application for a declaration that land is not restricted by a covenant, the onus is on the plaintiff to prove that it is not so affected. It is not on the defendant to prove that it is affected.
Land Compensation Act 1965 10
1 Citers


 
Lord Binning, Petitioner 1984 SLT 18
1984


Scotland, Land

1 Cites

1 Citers


 
Roake and others v Chadha and another [1984] 1 WLR 40
1984
QBD
Paul Baker QC
Land
Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to erect an additional house in contravention of the restriction. The plaintiffs owned other lots conveyed by transfers which contained no express assignment of the benefit of the covenant. The plaintiffs sought a declaration that they were entitled to the benefit of that covenant and an order restraining breach. The express words of the covenant excluded annexation, and that there was no building scheme. Nevertheless, the covenant had become annexed to Estate and by section 78 of the 1925 Act, because of a contrast between section 78 and section 79. The legislature must have intended the provisions of section 78 to be mandatory, not capable of exclusion. Held: the Court rejected that submission. No reason of policy had been suggested to explain why section 78 should be mandatory: "I am thus far from satisfied that section 78 has the mandatory operation which [counsel] claimed for it. But if one accepts that it is not subject to a contrary intention, I do not consider that it has the effect of annexing the benefit of the covenant in each and every case irrespective of the other express terms of the covenant. " and "The true position as I see it is that even where a covenant is deemed to be made with successors in title as section 78 requires, one still has to construe the covenant as a whole to see whether the benefit of the covenant is annexed. Where one finds the covenant is not qualified in any way, annexation may be readily inferred; but where, as in the present case, it is expressly provided: 'this covenant shall not enure for the benefit of any owner or subsequent purchaser of any part of the vendor's Sudbury Court Estate at Wembley unless the benefit of this covenant shall be expressly assigned…' one cannot just ignore these words. One may not be able to exclude the operation of the section in widening the range of the covenantees, but one has to consider the covenant as a whole to determine its true effect. When one does that, then it seems to me that the answer is plain and in my judgment the benefit was not annexed. That is giving full weight to both the statute in force and also what is already there in the covenant."
Law of Property Act 1925 78 79
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