swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Land - From: 1994 To: 1994
This page lists 35 cases, and was prepared on 02 April 2018.
Abbey National plc v Moss and Others [1994] 1 FLR 307
1994
CA
Peter Gibson LJ, Hirst LJ
Land, Trusts
Mrs Moss inherited the former matrimonial home. Her daughter (L) suggested that she transfer it into their joint names to ease its transfer on her mother's death. It was agreed the house would never be sold during Mrs Moss's lifetime. L borrowed £30,000 using the house as security and forged her mother's signature on the charge. Mrs Moss did not know of the mortgage. They fell out and L left and ceased to make payments. The chargee sought to recover the arrears, possession of the property and also made an application for an order for sale under s. 30. The judge ordered sale. Held: (by Majority) The position created by the transfer into joint names subject to the agreement that the property was not to be sold in the mother's lifetime was that the trust for sale thereby created could not be implemented without the mother's consent. The assignee of a donee could not acquire a better right than the donee had, but took his interest subject to all the equities effecting the interest of the donee. In proceedings apart from s 30, the court would not allow the trustees for sale to ignore the requirement of consent, and although in proceedings under s. 30 the court had a wide discretion to override the refusal of trustees for sale to sell on the application of any person interested, the trust for sale would not be enforced so long as there was a collateral purpose still subsisting requiring the retention of the property. The judge had been wrong to hold that the collateral purpose of the agreement had come to an end by reason of the daughter losing her beneficial interest through the mortgage, and his an error of law required the Court of Appeal to exercise its discretion under s. 30 afresh. It did so and refused an order for sale. "Again apart from s. 30, I apprehend that an assignee of the donee would be held not to be in any better position than the donee to ignore the requirements of Mrs Moss's concern to a sale." Hirst LJ (dissenting) would have upheld the judge's decision only being unwilling to interfere with an exercise of a judge's discretion under s30. S30 gives the court a discretionary power to order sale, even where the respondent to an application's interest in the property ranks before that of the applicant. The house was registered land and Mrs Moss was in occupation and that therefore s. 70(1)(g) would have applied. Nevertheless neither counsel for Mrs Moss nor the judge nor any member of this court suggested that the building society's s. 30 application was defeated by the operation of that sub-section
Law of Property Act 1925 30 - Land Registration Act 1925 70(1)(g)
1 Citers
Hampshire County Council v Attorney General [1994] NPC 62
1994
ChD
Millett J
Charity, Land
The Council wished to dispose of two plots of land. In each case the land had been provided many years ago to build schools on. In the first case, the land had been conveyed to a school board "upon trust for the purposes of a public elementary school". In the second, it was conveyed to a school board "by way of free gift for the purposes of a site for an elementary school". The council argued that the trusts were not charitable. Held: Each plot was held on charitable trusts. The first conveyance had been at an undervalue, and so constituted a bounty. Though no express charitable trust had been created, this was exactly the situation where a donor might have insisted on a charitable trust, and the presumption of regularity should be used to remedy any defect. The second conveyance was a gift and so a good reason for a charitable trust was created.
Clark v Lindale Homes Limited 1994 SC 210
1994
SCS
Lord President Hope, Lord Morison
Scotland, Land
The court set out the conditions to found a claim for breach of warrandice on a land purchase: "Although eviction did not mean physical removal, it did involve the emergence of a real or threatened burden on the property which had to come from a competing title - holder, that title itself being beyond doubt." Where the pursuer did not aver that any action had been taken by the party with the competing title, the pursuer had no relevant case.
Lord President Hope said: "As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. This is a fact which can be demonstrated judicially, or by the seller's action admitting that there is such a defect, or by proof that the defect is unquestionable." and
"The significance of the warning in sec 895 of Bell's Principles that warrandice is an obligation to indemnify, not to protect, is that the mere possibility that there may be an eviction, where the defect is unclear, will not do. There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to an indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice".
Though actual eviction in the sense of ejection or removal from the property is not required: "This still leaves open, however, the question whether it is essential, in order to bring the obligation to indemnify into existence, that a challenge to the pursuer's title has been made by the party with the prevailing title or whether it is sufficient that there is a defect in the title which has caused loss to the grantee and would, if it had been insisted upon, have been unquestionable . . more is required to justify a claim under the warrandice clause than a mere deficiency in the title of the grantee". And
"As Lord McLaren observed in Welsh v Russell at p. 773, the obligation of warrandice remains latent until the conditions that give it force and effect have come into existence. The fact that the pursuer did not acquire a good title to the flat is in itself not sufficient to give rise to the obligation to indemnify. She was not entitled to incur expense to remove the defect simply in order to protect herself against the possibility of loss on its re-sale. Something else was required, and according to expressions used in the authorities it is eviction which gives rise to the claim. The word "eviction" might be thought to imply that the loss is in some respect due to action by the party who has the competing title to assert his rights".
Lord Morison said: "It is of course obvious that 'eviction' does not mean physical removal. But it is in my view equally clear on these authorities, and confirmed by the case of Welsh v Russell, that it does involve the emergence of a real or threatened burden on the property. The word itself in any event clearly indicates this to be the case. If such a burden has been judicially established, the position is clear. If it has not been judicially established the warrandice clause may still be invoked if eviction in the strict sense is threatened, provided that the threat is based on an unquestionable right. Such a threat could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right to make it. In my opinion the absence of any averment by the pursuer that she suffered loss either as a result of the constitution of a real burden by judicial decree or as a result of a demand by the competing title-holder, renders her case irrelevant".
1 Citers
In Re Beechwood Homes Limited's Application [1994] 2 EGLR 178
1994
CA
Dillon LJ
Land
Dillon LJ said that the case had proceeded below in the Lands Tribunal and had, therefore, to proceed in the Court of Appeal on the common basis that the power to consent to breach of a covenant was a dispensing power attached to another otherwise absolute prohibition.
1 Citers
Regina v Cornwall County Council ex parte Huntington and Another; CA 1994 - [1994] 1 All ER 694
Berkeley Leisure Group Ltd v Williams and Others [1994] EGCS 18
1994
CA
Land
A right to claim rectification of the boundary of the land conveyed passed with the conveyance of the land itself.
1 Citers
Deakins v Hookings [1994] 1 EGLR 190
1994
CC
Judge Cooke
Land, Nuisance
(County Court) Judge Cooke considered a claim for an alleged breach of a right of light. The well-lit area in the living room was 51% of the floor area before the development, reduced to 41% afterwards. Held: There had been an actionable interference with the plaintiff's right to light. Referring to Ough v King, he said that the decision "really means not so much that one disregards the 50/50 rule, but that it is a bare minimum" and "It seems to me that having regard to the authorities I ought to approach the problem on these bases: (i) In a room that is already ill-lit every bit of light is precious. (ii) Save in an extreme case it would be difficult to say that once a living room (contrast a store) fell below 50/50 that the light left was adequate. (iii) In considering whether a room where more than 50% remained well-lit regard should be had to the use to be made of the remainder and how bad, vis a vis that use, the remaining light was. (iv) The test is not merely a statistical one: test (ii) provides a pretty irreductible minimum."
1 Cites
1 Citers
Regina v Somerset County Council ex parte Fewings and Others; QBD 10-Feb-1994 - Times, 10 February 1994; Independent, 16 February 1994
Hughes v Cook and Another; CA 14-Feb-1994 - Ind Summary, 21 March 1994
Fredin v Sweden (No 2) 18928/91; [1994] ECHR 5
23 Feb 1994
ECHR
Human Rights, Land
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage - financial award; Costs and expenses partial award - domestic proceedings; Costs and expenses partial award - Convention proceedings
[ Bailii ] - [ Bailii ]
Rhone and Another v Stephens; HL 18-Mar-1994 - Independent, 23 March 1994; Times, 18 March 1994; [1994] 2 WLR 429; [1994] 2 AC 310; [1994] UKHL 3; [1994] 2 All ER 65
Robert Leonard Developments Limited v Wright Unreported, 23 March 1994
23 Mar 1994
CA
Dillon LJ, Henry LJ
Contract, Equity, Land
The terms expressly agreed by the parties provided for the grant of a lease and the sale of the contents of the property. There was a single agreement for the lease and the contents. The written document did not incorporate the terms as to the sale of the contents and so did not comply with section 2. Held: Rectification of the written document was ordered so as to include the terms as to the sale of the contents, with the result that the written document as rectified did comply with section 2. Dillon LJ remarked that the availability of rectification in that case was "obvious" and "straightforward".
Law of Property (Miscellaneous Provisions) Act 1989 2
1 Citers
Coventry City Council v Cole and Another (2) Gazette, 23 March 1994
23 Mar 1994
CA
Land, Landlord and Tenant
A covenant to pay a service charge imposed on any purchasing tenants was valid.
Housing Act 1985 Part V
Re Palmer (A Deceased Debtor), Palmer v Palmer; CA 6-Apr-1994 - Independent, 06 April 1994; [1994] EWCA Civ 15
Cambro Contractors Ltd v John Kennelly Sales Ltd Ind Summary, 24 April 1994; Times, 14 April 1994
14 Apr 1994
CA
Land
Rectification is inappropriate without mutual mistake and common intention. Confusion short of a mutual mistake will not properly found the rectification of a deed.
Regina v Secretary of State for the Environment Ex Parte Bagshaw, Regina v Sane Ex Parte Norton and Bagshaw Times, 06 May 1994; [1994] 68 P & CR 402
6 May 1994
QBD
Owen J
Environment, Land
Mr Bagshaw sought an order modifying the definitive map and statement to show a former mine track as a public right of way. Held: A claimant seeking to establish a public path had to show evidence in support or that it was reasonable to make the allegation.
Owen J, referring to 53(3)(c)(i) said: "It is necessary to give some meaning to all the words used. Accordingly, there must be a difference between showing "that a right of way which is not shown in the map and statement subsists" and showing that a right of way which is not shown in the map and statement "is reasonably alleged to subsist". Accordingly the questions for the council and subsequently for the Secretary of State were: does the evidence produced by the claimant together with all the other evidence available show that either-- (a) a right of way subsists? (I shall call this test "A"), or (b) it is reasonable to allege that a right of way subsists? (I shall call this test "B"). To answer either question must involve some evaluation of the evidence and a judgment upon that evidence. For the first of those possibilities to be answered in the affirmative, it will be necessary to show that on a balance of probabilities the right does exist. For the second possibility to be shown it will be necessary to show that a reasonable person, having considered all the relevant evidence available, could reasonably allege a right of way to subsist."
Wildlife and Countryside Act 1981 53(3)(c)(I)
1 Citers
Crown Estate Commissioners v Corporation of City of London Times, 18 May 1994; Independent, 19 May 1994
18 May 1994
CA
Land
West Smithfield conveyed in fee simple to City by Charles I. The 1638 Charter was to be interpreted as a grant of a conditional freehold of Smithfield.
Holmes and Another v Bradford Metropolitan Council Times, 19 May 1994
19 May 1994
QBD
Land, Planning
The owner of land is not liable under an enforcement notice charge under section 179 (4), but under section 179 (1).
Town and Country Planning Act 1990 179(1) 179 (4)
Cheltenham and Gloucester Building Society v Grant Ind Summary, 23 May 1994; Times, 09 May 1994
23 May 1994
CA
Housing, Litigation Practice, Land, Evidence
The District Judge is to exercise his discretion informally on suspending possession, and need not apply the rules of evidence rigidly. He may consider that the defendant has sufficent means to support a clearance of the arrears over a reasonable period of time and thus to suspend the rder for possession, without taking direct evidence from him.
Administration of Justice Act 1970 - Administration of Justice Act 1973 8
Jordan v Norfolk County Council Times, 25 May 1994; Ind Summary, 20 June 1994; Gazette, 03 August 1994; [1994] 4 All E R 218; [1994] 1 WLR 1353
25 May 1994
ChD
Sir Donald Nicholls VC
Litigation Practice, Land, Environment
An order to replace trees 'as reasonably practical' was to include cost considerations, and it could be varied where the costs exceeded those expected. The mandatory order was varied. When considering what was meant by 'reasonably practical' ". . . there is very little nowadays which is not physically feasible if enough money is spent. Hence in this context the phrase is apt to include financial considerations."
1 Citers
Baron Dynevor v Richardson; ChD 26-May-1994 - Ind Summary, 13 June 1994; Times, 26 May 1994
Jacques v Secretary of State for the Environment; QBD 8-Jun-1994 - Independent, 08 June 1994
Cotton v Derbyshire District Council Times, 20 June 1994
20 Jun 1994
CA
Land
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff's claim for damages for serious injuries sustained from falling off a cliff. Applying Glasgow Corporation v Taylor the Court held that the occupiers were under no duty to provide protection against dangers which are themselves obvious.
1 Cites
1 Citers
United Bank of Kuwait Plc v Sahib and Others Times, 07 July 1994; [1995] 2 WLR 94
24 Jun 1994
ChD
Chadwick J
Land, Banking
The customer had deposited title deeds with the bank as security for a loan, but no deed of charge had been executed. Held: The mere deposit of title deeds does not create an equitable charge without more. The 1989 Act operated as a statutory bar to such a claim. The rule that the deposit of title deeds by way of security created an equitable mortgage of the property had not survived the coming into force of the section.
Chadwick J said: "Whether or not the enforcement of the agreement which is to be inferred or presumed from the deposit of the title deeds was properly to be regarded as an example of the operation of the doctrine of part performance, as Lord Selborne LC suggested in Maddison v. Alderson, 8 App. Cas. 467, or as a sui generis exception to the Statute of Frauds 1677 which was outside the proper scope of that doctrine - in that the act of part performance relied upon was not the act of the mortgagee who was seeking to enforce the agreement - there can, in my view, be no doubt that the courts have, consistently, treated the rule that a deposit of title deeds for the purpose of securing a debt operates, without more, as an equitable mortgage or charge as contract - based, and have regarded the deposit as a fact which enabled the contract to be enforced notwithstanding the absence of evidence sufficient to satisfy the Statute of Frauds. It is impossible to distinguish those cases, of which Ex parte Langston, 17 Ves. 227 is an example, in which the court, having inferred from the fact of the deposit an intention to create security, let in oral evidence to identify the scope of the obligation which was to be secured from cases in which there was no evidence beyond the fact of the deposit. In all those cases, the court was concerned to establish, by presumption, inference or evidence, what the parties intended, and then to enforce their common intention as an agreement."
Law of Property (Miscellaneous Provisions) Act 1989 2 - Law of Property Act 1925 53(1)(c)
1 Cites
1 Citers
McGeown v Northern Ireland Housing Executive; HL 24-Jun-1994 - Gazette, 03 August 1994; Independent, 28 June 1994; Times, 24 June 1994
Silver Mountain Investments Ltd v Attorney General for Hong Kong Gazette, 29 June 1994
29 Jun 1994
PC
Land, Commonwealth
Resumption of Compulsory Purchase of land ordered despite two year old offer.
Wards Construction (Medway) Ltd v Barclays Bank Plc and Another; CA 1-Jul-1994 - Times, 20 July 1994; (1994) 2 EGLR 32; (1994) 68 P&CR 391
Jaggard v Sawyer and Another; CA 18-Jul-1994 - Ind Summary, 22 August 1994; [1995] 1 WLR 269; [1994] EWCA Civ 1; [1995] 13 EG 132; [1995] 2 All ER 189; [1995] 1 EGLR 146; [1994] EGCS 139
Sheffield Development Corp v Glossop Sectional Buildings Ltd Ind Summary, 18 July 1994
18 Jul 1994
CA
Land
Ceasing to trade after notice served did not defeat claim for compensation.
Land Compensation Act 1973 46(1)
Regina v Secretary of State for Environment Ex Parte Kent Cc Times, 11 November 1994
11 Nov 1994
QBD
Land
A footpath on a definitive map may not be moved by means of an administrative order.
Wildlife and Countryside Act 1981 5
Duke of Westminster and Others v Birrane Gazette, 18 January 1995; Times, 17 November 1994; Ind Summary, 19 December 1994; [1995] QB 262
17 Nov 1994
CA
Nourse LJ
Landlord and Tenant, Land
A basement extending under the house next door means that the property with the basement is not a not a dwelling-house for leasehold enfranchisement purposes. The result would create difficulties with flying freeholds. "The primary purpose of section 2(2) must have been to exclude from the operation of the Act houses in respect of which the inability of one freehold owner to enforce positive obligations against successors in title of the other would be likely to prejudice the enjoyment of the house or another part of the structure." and the test of materiality under section 2 was to be assessed on the basis that "if the part of the house which lies above or below a part of the structure not comprised in it is of sufficient substance or significance to make it likely that enfranchisement will prejudice the enjoyment of the house or another part of the structure, whether by reason of the inability of one freehold owner to enforce positive obligations against successors in title of the other or otherwise, then it is a material part of the house within section 2(2)."
Leasehold Reform Act 1967 1(1) 2(1) 2(2)
1 Citers
McAlpine v Secretary of State for the Environment and Another Times, 06 December 1994; [1995] 1 PLR 16
6 Dec 1994
QBD
Planning, Land
The extent of a curtilage was to be determined as at the time when a dispute arose, but historical evidence remained relevant.
1 Citers
Hutton v Barrett and Another Times, 16 December 1994
16 Dec 1994
OHCS
Land
A purchaser of land may resile from the contract if land to be conveyed differs materially from the contract description.
Wheeler and Another v JJ Saunders Ltd and Others; CA 19-Dec-1994 - Times, 03 January 1995; [1996] Ch 19; [1994] EWCA Civ 8; [1994] EWCA Civ 32; [1995] 3 WLR 466; [1995] 2 All ER 697
C F and M G Roberts v South Gloucestershire District Council; LT 31-Dec-1994 - ACQ/90/93; [2001] EWLands ACQ_90_1993