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		Land - From: 2002 To: 2002 This page lists 149 cases, and was prepared on 02 April 2018. Â Barclays Bank plc v Alcorn [2002] EWHC 498 (Ch) 2002 ChD Hart J Human Rights, Land Hart J said: "It seems to me however, that her general submission on the effect of the Human Rights Act in relationship to a mortgagee's action for possession is correct, namely, that the matter is regulated by section 36 of the Administration of Justice Act 1970 in a way which draws a balance which Parliament was entitled to draw between the interests of occupants of dwelling houses and the interests of mortgagees, and does so in a manner which is proportionate and reasonable, and allows the court, in the exercise of its discretion, to apply criteria of reasonableness and proportionality in either granting or denying the mortgagee its remedy." Administration of Justice Act 1970 1 Cites 1 Citers Â Taylor v Hamer [2002] EWCA Civ 1130; [2003] 1 EGLR 103 2002 CA Arden, Sedley LJJ Contract, Land The parties were buyers and sellers of land. The seller's husband removed a large area of flagstones after the buyer's first inspection but before exchange. He seeded over the land so that, on a second inspection by the buyer's solicitor, the removal was not obvious. The solicitor, did not appreciate that the flagstones had been removed, but, seeing a pile of flagstones asked about them. He was told (deceitfully) that these had not been taken from the property, and that they were not included in the sale, but were to be removed by the seller, as in fact happened. The contract contained a deemed inspection clause and Standard Condition 3.2.1. An incomplete schedule of fixtures and fittings to be included or excluded did not mention the flagstones. Standard Condition 5.1.1 referred to the "physical state . . at the date of the contract"). An entire agreement clause precluded reliance on statements or representations other than those contained in written replies to preliminary inquiries. The parties disputed the effect of the clause in relation to replies to preliminary inquiries. Held: (By majority) The buyer had a contractual claim. The reference to the property being sold was to be interpreted to refer to the property with the fixtures which the buyer saw on his inspection, or reasonably believed to be included in his sale when he made his initial offer. Sedley LJ said: "In the manner seminally described by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society . . the meaning to be ascribed to 'the Property' is the meaning it would be given by a reasonable person who knows what the parties knew at the time they contracted . . It includes the facts that the claimant had been shown premises which included the flagged dog garden and that he had not been told before contract that this was no longer part of the realty. In my judgment such facts are not within the exclusion zone of prior negotiation and subjective intent described in Lord Hoffmann's third principle . . They are the normal means by which the subject matter of any offer and acceptance is identified. This would probably be enough . . to make the flagstones part of 'the Property' for which the parties went on to exchange contracts. But here, additionally, the vendor deliberately induced the buyer, through his solicitor, to believe that there had been no such alteration. To Arden LJ's question: why tell this lie? Ms Hargreaves [Counsel for the Seller] had no answer. Against this background of fact any reasonable person, in my judgment, would have understood the property which was being bid for and contracted for to include the flagstones in the dog garden. The case falls outside the caveat emptor paradigm … because the vendor, by his conduct in inviting an offer for the property as shown to the purchaser and without any explicit subtraction from it, represented that it was to include the flagged garden. In everyday house purchases people are entitled to be confident that, unless some different agreement is reached and recorded, the property which is to pass includes its fixtures. If before the sale takes place the seller has given the buyer no reason to think that the fixtures (at least those the buyer knows of) are not part of the premises for which an offer is being invited, simple morality says that he cannot remove them without telling the buyer that they are no longer for sale. To fail to do so is to invite a bid for something which is no longer what the bidder still reasonably believes it to be; not to put too fine a point on it, it is cheating. Surreptitiously removing fixtures does not mean that the seller is stealing them, for they are his. It means that if the sale goes through he will be failing to convey what the eventual buyer has become entitled to have conveyed." 1 Citers Â Regina (Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 (Admin) 17 Jan 2002 Sullivan J Land The court refused to set aside the council's decision to register as a common a lesser area then applied for. " Does the council have power to register a smaller area than applied for? It is perfectly true that there is no express power in either the Act or the Regulations to register a smaller area of land. I have set out the relevant enactments above. The Regulations require that the application must be in a particular form, and that form requires that the land the subject of the application should be identified. However, it has to be recognised that those who make applications for registration are not necessarily expert cartographers. Plainly, they will not have the benefit, as the inspector did, of being able to consider all of the relevant evidence for and against registration of a particular parcel of land. What is the purpose of identifying the land in the application? The answer is, so that the registration authority can give appropriate notice to owners, lessees, tenants or occupiers, or to others who might wish to object to an application to register. It seems to me that, provided the boundary is not altered in such a way as to defeat that purpose of defining the land in the application form, for example by including land which might be owned, tenanted or occupied by others, there can be no sensible objection to the registration authority cutting down the extent of land to be registered. Mr Ryan’s decision [as an inspector in Spring Common] is readily understandable on the facts. In that case it would appear that a significant building which, on any basis, could not form part of a town or village green, had been carelessly included in an application. One can well understand that such an egregious error might have been fatal to that particular application, but that is very different from the facts of the present case. The applicants sought the registration of Ladydale Meadow. There was debate as to the extent to which they had used the whole of the 20 acres of the meadow. The inspector found that they had not used the whole of it. There is no question of carelessness or of the inclusion of a parcel of land that could not on any basis form part of a town or village green. Moreover, what is of importance is that no prejudice to the claimant in the present case has been suggested. Mr Wolton submits that the Wheatcroft case is not analogous to the present case because a planning permission will generally confer benefits upon the landowner, whereas a registration as a town or village green will be detrimental to an owner’s interests. Provided the registration authority does not step outside the boundary of the application and provided the landowner, tenant and occupier have had ample opportunity to make their representations, it is difficult to see why, as a matter of common sense, the registration authority should not be able to register a lesser area, provided it is not substantially different from that which has been applied for. There is no substantial difference here, only a more accurate definition of the boundaries in the light of all of the evidence. I accept Mr Mynors’ submission that it is implicit in an application to register an area of land that the applicant is saying that each and every part of that land is registrable as a town or village green. It would be quite artificial to require an applicant to split up the application site into a number of smaller parcels. Even if I am wrong about this and the registration authority does not have power itself to register a lesser area than that applied for, this court has a discretion as to whether or not to grant relief. As a matter of discretion I can see no useful purpose being served by quashing the council’s decision to register a lesser area. The only consequence would be that the applicants for registration would be able to put in a fresh application to register the lesser area. The inspector’s report recommending registration of that lesser area would be public knowledge and would plainly be evidence that could be put forward at any further inquiry, if there were to be one, and, absent any material change of circumstances or new evidence, precisely the same conclusion would be reached. Thus it seems to me, absent any prejudice to the claimant on the facts of the present case, it would be pointless to grant relief on such a limited basis." Commons Registration Act 1965 1 Cites 1 Citers Â Rosie Blanchfield and others v The Attorney General of Trinidad and Tobago and Chaguaramas Development Authority [2002] PC 1 22 Jan 2002 PC Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Hobhouse of Woodborough Lord Millett Sir Christopher Slade Land, Constitutional, Commonwealth (Trinidad and Tobago) In the second world war, land was compulsorily purchased and let to the USA. In 1977 it was returned by the USA, but then vested in a public authority. The applicants said it should revert to them as descendants of the original owners. They said the purchase was for so long as the land was required for the purpose for which it was used, but the original owners had been compensated. There was no express reverter clause, and no law of reverter known to the law of Trinidad and Tobago. English highway law however was settled that if land was acquired for a highway, but ceased to be needed, it reverted to owners despite the absence of any express provision. Here, however the land had been vested in the Crown, and no reverter could therefore be implied. Chaguaramas Development Authority Act 1972 [ PC ] - [ Bailii ] - [ PC ] Â Weymede Litho Printers Ltd v Runnymede Borough Council [2002] EWLands ACQ_81_2001 22 Jan 2002 LT Land [ Bailii ] Â Universal Leasing and Finance Limited v Montego Vacations Limited (Appeal No 33 of 2000) [2002] UKPC 2 24 Jan 2002 PC Lord Hope of Craighead Lord Browne-Wilkinson Lord Nolan Lord Scott of Foscote Sir Christopher Slade Commonwealth, Land, Contract PC (Jamaica) The case concerned a contract for the sale of land. No completion date had been specified, nor that vacant possession should be given. Held: Evidence supported the suggestion that vacant possession had been agreed between the parties. The case was remitted for consideration of the form in which specific performance was to be ordered. [ PC ] - [ PC ] - [ PC ] - [ PC ] - [ Bailii ] Â Broadwick Financial Services Limited v David John Spencer Sylvia Julie Spencer Gazette, 15 March 2002; [2002] EWCA Civ 35; [2002] 1 All ER 446 30 Jan 2002 CA Lord Justice Auld, Lord Justice Robert Walker, And, Lord Justice Dyson Consumer, Land The respondents appealed an order for possession under a legal charge which they argued was an extortionate credit bargain, and had been improperly executed and was unenforceable. The appellants were 'non-status borrowers'. Held: A concession letter was not intended to over-ride other clear descriptions of the appellant's obligations. The judge had compared the interest rate charged with other rates charged to non-status borrowers, rather than with interest rates at large. That was correct for this particular market. The interest rates were not extortionate, and nor did the right to vary the interest rate contradict fair dealing. The redemption calculation was based upon the rules. The rules had been criticised, but the clause was common, and not extortionate for the time. "The cap imposed by the administrative agreements has not operated in an extortionate way, because the margins between the Halifax rate, for example, and the Claimants are not so wide as to be capable of being categorised as harsh and oppressive within the ambit of Section 138." Appeal refused. Consumer Credit Act 1974 138 - Consumer Credit (Agreements) Regulations 1983 60(1) 1 Citers [ Bailii ] Â Argyropoulou v Salford City Council [2002] EWLands ACQ_189_2000 5 Feb 2002 LT Land COMPULSORY PURCHASE - Compensation - dwellinghouse in dilapidated condition - settlement comparables - compensation Â£7,000 [ Bailii ] Â Â Aero Properties Ltd and Another v Citycrest Properties Ltd and Another; ChD 6-Feb-2002 - Gazette, 21 February 2002; [2000] 2 P&CR 21 Â Leigh v Taylor [1902] AC 157; [1902] UKHL 1 6 Feb 2002 HL Lord Macnaghten, Lord Halsbury LC Land Valuable tapestries had been set up for display in a room in a stately home . They were first stretched over canvas and then tacked to the canvas. That canvas was then stretched over strips of wood and nailed to those strips of wood which in turn were nailed to the walls of the drawing room. The tapestries could be removed without doing any structural damage to the building. Held: Despite the degree of attachment to the walls of the house, having regard to the nature of the items and the purpose of their being placed as they were, the tapestries did not become fixtures. The new rule rfelected a change "in our habits and mode of life." Lord Halsbury LC: "Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor". 1 Citers [ Bailii ] Â Thames Water Utilities Limited v Peter Marcic Times, 14 February 2002; Gazette, 21 March 2002; [2002] EWCA Civ 65; [2002] QB 929; [2002] 2 All ER 55 7 Feb 2002 CA Lord Phillips MR, Lord Justice Aldous, And, Lord Justice Ward Utilities, Land, Nuisance, Human Rights, Negligence The claimant owned land over which sewage and other water had spilled from the appellant's sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to say that his human rights had been infringed insofar as his right to peaceful enjoyment of his possessions had been infringed. Whilst it would be reasonably possible to prevent flooding of the claimant's property, protecting all similarly threatened properties would cost impractically large sums. Held: The test for nuisance and negligence had become similar until the point where a positive act to prevent harm was required rather than acting in such a way as to avoid causing harm. There is a clear common law duty to do whatever is reasonable to prevent hazards on the land, however they might arise, from causing damage to a neighbour. The appellant provided the system of sewers for profit, and had not demonstrated that it was not reasonably practicable for them to abate the nuisance. Water Industry Act 1991 94(1) - European Convention on Human Rights 8 1 Cites 1 Citers [ Bailii ] Â Dooley v Parker and Another [2002] EWCA Civ 169 7 Feb 2002 CA Land Boundary dispute. [ Bailii ] Â Prielipp and Another v Secretary of State for Environment, Transport and the Regions [2002] EWLands ACQ_127_1999 8 Feb 2002 LT Land [ Bailii ] Â Arora v Singh [2002] EWCA Civ 341 8 Feb 2002 CA Land Appeal from refusal ofa declaration that acharge on land was void. [ Bailii ] Â Â Carney, Regina (on the Application of) v North Lincolnshire Council; CA 8-Feb-2002 - [2002] EWCA Civ 186 Â Railtrack Plc and Another v Guinness Ltd [2002] EWLands CON_153_2000 11 Feb 2002 LT Land 1 Citers [ Bailii ] Â Langley and others v Coal Authority [2002] EWLands LCA_29_1996 18 Feb 2002 LT Land [ Bailii ] Â Nawaz v Slough Borough Council [2002] EWLands ACQ_170_2000 18 Feb 2002 LT Land [ Bailii ] Â Dennis Pritchard Evans v Tiger Investments Limited, David John Moore [2002] EWCA Civ 161 20 Feb 2002 CA The President, Lord Justice Potter, And, Lord Justice Kay Company, Land, Evidence, Civil Procedure Rules The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had been purchased in the second defendant's name, he said, only for convenience in a speedy transaction, and the charge had been executed by him for the company. Held: The judge had evidence sufficient to establish that the land was being purchased for the first defendant. The appellants sought to introduce new evidence at appeal. The Ladd principles on admission of evidence at appeal, are that the evidence was not with reasonable diligence available for the trial; that the evidence would have an important influence, and that it was credible. In this case the evidence could have been obtained. Concentrating on the justice as between claimant and defendant, there was no purpose in relaxing that principle. Civil Procedure Rules 52.11(2) 1 Cites [ Bailii ] Â Regina (on the Application of MWH and H Ward Estates Ltd) v Monmouthshire County Council [2002] EWHC 229 (Admin) 20 Feb 2002 Admn Richards J Land The company challenged a notice served on it by the respondent requiring access for the purpose of laying drainage. Land Drainage Act 1991 64 [ Bailii ] Â Halifax Plc v Omar [2002] EWCA Civ 121 20 Feb 2002 CA Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker Land, Equity, Registered Land The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent owner. The tenant claimed to have taken and paid for a lease from one of the later parties to the fraud. He claimed an equitable charge by subrogation in priority to the claimant. The lender had not taken steps to register any caution to protect its interests. Held: There are three requirements for subrogation. The money must have been used to pay the purchase price, that it had been paid by them solely for this purpose, and that the transaction was always to be on the basis that they would achieve a charge. Tracing is neither a claim nor a remedy but a process, and subrogation is a remedy, not a cause of action. The respondent was an innocent third party purchaser without notice of the claimant's interest. There is a distinction between subrogation to a security, which includes rights in rem, and subrogation merely to the indebtedness itself which operated only in personam. The doctrine of subrogation is that, where A's money is used to pay off B, a secured creditor, A is entitled in equity to an assignment of B's security rights. The appeal failed, and the interest of the lender had priority. 1 Cites 1 Citers [ Bailii ] Â Braymist Limited and Others v Wise Finance Company Limited Gazette, 28 March 2002; Times, 05 April 2002; [2002] EWCA Civ 127 20 Feb 2002 CA Lord Justice Judge, Lord Justice Latham, Lady Justice Arden Company, Land, Legal Professions, European, Contract The claimant set out to sell land whilst in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent did not know of the non-incorporation of the company. The claimant later rescinded the contract, and forfeited the deposit. Held: The section in the 1985 Act implemented a clause in the 1972 Act and the 1968 directive. Was the agent both liable under the contract and able to enforce it, and was the agreement unenforceable for failure to comply with the 1989 requirement for an appropriate memorandum? The European directive was to be interpreted directly. It was a compromise of different laws through member states, but was silent as to the ability of an agent to enforce such a contract. Section 36C should not be read down to limit its meaning. In this case, the solicitor agent could enforce the contract. As a party to the contract, he could also sign, and the 1989 Act should not be read too strictly. Appeal dismissed. Companies Act 1985 36C(1) - European Communities Act 1972 9(2) - First EC Company Law Directive (68/151/CEE OJ No. 1968 L6) Art 7 - Law of Property (Miscellaneous Provisions) Act 1989 2(1) 3 [ Bailii ] Â Pierce and Another v Coal Authority [2002] EWLands LCA_2_1998 21 Feb 2002 LT Land [ Bailii ] Â Bath and North Somerset District Council v Nicholson Unreported, 22 February 2002 22 Feb 2002 ChD Kim Lewison QC Land The defendant occupied a house belonging to the claimant Council as a squatter. He undertook various improvements, on occasion assisted by the Council. There were then protracted and sporadic negotiations for a lease between 1982 and 1988 but no lease was agreed. Nothing then happened for three years. There was then some occasional contact but in 2000 the Council took possession proceedings and the defendant counterclaimed for adverse possession. Held: There was no adverse possession because there was permission to occupy the property during the pendency of the negotiations for the lease. Apart from the overt acts of assistance given by the Council, the continuation of negotiations for the lease while the defendant was in possession constituted a tacit acceptance by the Council of that possession. Kim Lewison QC added: "Where a person is in possession of land pending negotiation for the grant of an interest in land, it is a natural inference to draw that the owner permits him to remain there at least until the negotiations have irretrievably broken down." and: "In my judgment, the Council did tacitly or impliedly give Mr Nicholson permission to continue to occupy the lodge at least during the pendency of the negotiations for a lease." In his view the licence probably did not end until a later stage: "I find therefore that from 1984 at the latest, when the Council installed the new drain and provided the Elsan closet, until at least the middle of 1988, when negotiations ground to a halt, Mr Nicholson's possession was with the Council's permission and hence was not adverse possession. Indeed I think that his possession would have continued to be permissive until the Council told him that it was not. Mr Grattan's efforts to 'rationalise (not terminate)' Mr Nicholson's occupation confirms the permissive nature of it." 1 Citers Â Southampton City Council, Re [2002] EWLands ACQ_194_2000 22 Feb 2002 LT Land [ Bailii ] Â Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others Times, 29 March 2002; Gazette, 11 April 2002; [2002] EWHC 218 (Ch) 26 Feb 2002 ChD Mr Justice Etherton Land, Wills and Probate Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted. Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as a right of reverter, and therefore as part of the residuary estate, but rather as if it had been land in the estate, and passed as provided by the will as such. A right of reverter on the determination of a determinable fee was devisable under 3 of the 1837 Act School Sites Act 1841 2 - Wills Act 1837 3 1 Cites [ Bailii ] Â David Howard v Rochdale Metropolitan Borough Council ACQ/117/2001 26 Feb 2002 LT Land, Damages The application sought to determine the compensation for land acquired compulsorily. The property was held under a long lease, but was severely dilapidated. Held The condition of the property was relevant both as to loss of rental and as to capital compensation. The valuation must be robust and based upon realistic assessments. The capital value was 7,500. The claimant said that when he learned that the land was to be acquired compulsorily, he had ceased to let it. To make such a claim, the claimant had to show a causal connection. None had been shown. [ LT ] Â Aubergine Enterprises Limited v Lakewood International Limited Gazette, 11 April 2002; [2002] EWCA Civ 177; [2002] 1 WLR 2149 26 Feb 2002 CA Lord Justice Auld, Lord Justice Ward, And, Lord Justice Robert Walker Contract, Landlord and Tenant, Land A sought confirmation that it had successfully rescinded a contract for the purchase of a leasehold property from L. Either party was to be able to rescind, if consent to the assignment had not obtained before three days before completion. There appeared to be confusion as to whether consent had been indicated between the solicitors. Held: Words in a letter 'subject to licence' had different effect where there was an existing legal relationship between the parties. The consent had been given sufficiently to comply with the contract, even though informal and conditional. The seller was not in breach, and the buyer was not free to rescind. 1 Cites 1 Citers [ Bailii ] Â Scottish Widows Fund and Life Assurance Society v Weller and Another [2002] EWCA Civ 384 26 Feb 2002 CA Parker LJ Land Application for leave to appeal against possession order under a legal charge supporting a guarantee. [ Bailii ] Â Â National Westminster Bank Plc v Amin and Another; HL 28-Feb-2002 - [2002] UKHL 9; [2002] 1 FLR 735; [2002] NPC 33; [2002] 2 P & CR DG3 Â Rhodes v Derby City Council [2002] EWLands ACQ_76_2001 5 Mar 2002 LT Land [ Bailii ] Â State Bank of New South Wales (T/A Colonial State Bank) v A Carey Harrison III [2002] EWCA Civ 363 8 Mar 2002 CA Land [ Bailii ] Â L E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWHC 1568 (Technology); [2002] EWHC 1568 (Technology) 11 Mar 2002 TCC Land 1 Citers [ Bailii ] Â P and O Overseas Holdings Ltd v Rhys Braintree Ltd and Another Times, 05 April 2002; [2002] EWCA Civ 296 12 Mar 2002 CA Sir Andrew Morritt, Vice-Chancellor, Lord Justice Mantell and Lord Justice Tuckey Contract, Land, Registered Land The first defendant appealed the award of interest on an order for specific performance of a contract for the sale of land. It had declined to complete the purchase because the seller had not been registered as proprietor of the land, and the transfer to it had not been stamped. Held: The transfer to the seller would not be stamped until after completion, and that was not a good reason for delaying completion. Interest was payable from the date requested for completion since the seller was able to complete on that date. Land Registration Act 1925 37 110(5) 1 Cites [ Bailii ] Â Ali v Butt (T/A Nationwide Financial Services) [2002] EWCA Civ 394 13 Mar 2002 CA Aldous LJ Land, Contract [ Bailii ] Â Tomlinson v Congleton Borough Council and Another Gazette, 23 May 2002; [2002] EWCA Civ 309 14 Mar 2002 CA Lords Justices Ward, Sedley and Longmore Negligence, Land The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming. Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were ineffective, but had not yet carried out landscaping works to deter swimmers. Under the Act they could be liable to trespassers. The court drew a distinction between approaching 1(3) as a duty owed to a claimant as a member of a class, and 1(4) which focussed on the individual claimant. What was reasonably required could not be discovered without first deciding that it was reasonable to offer protection to that person. Occupiers Liability Act 1984 1 1 Cites 1 Citers [ Bailii ] Â Howard v Rochdale Metropolitan Borough Council [2002] EWLands ACQ_117_2001 21 Mar 2002 LT Land [ Bailii ] Â Bakewell Management Ltd v Brandwood and Others Times, 19 April 2002; Gazette, 10 May 2002 21 Mar 2002 ChD Mr Justice Park Land, Litigation Practice The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant's activity a crime, and that, following Hanning, criminal activity could not be used to found a claim of adverse possession. The claimant countered that an argument as to the doctrine of lost modern grant had not been proposed in Hanning, and that Hanning should accordingly be overruled. Held: It was not for a High Court judge to go against a precedent set by the Court of Appeal, save in exceptional circumstances. In Hanning, particularly, leave to appeal had been refused by the House of Lords. The court was bound to find in favour of the land owner. Law of Property Act 1925 193(4) 1 Cites 1 Citers Â Beard and National Westminster Bank Plc v Wigan Metropolitan Borough Council [2002] EWLands ACQ_72_2001 21 Mar 2002 LT Land [ Bailii ] Â Connaughton, Regina (on the Application Of) v West Dorset District Council [2002] EWHC 794 (Admin) 25 Mar 2002 Admn Land [ Bailii ] Â Freeguard v Royal Bank of Scotland plc Times, 25 April 2002 26 Mar 2002 ChD Mr Simon Berry, QC Land, Negligence The applicant had an option to purchase land, but neither the option, nor the subsequent charge were registered. The land was sold by the respondent under a power of sale, and the claimant sought damages for the respondent having negligently failed to achieve a proper price. The respondent said that she was not owed a duty of care because she had an insufficient interest in land. Held: Under Downsview, the duty of care of the respondents extended to anyone having an interest in the land, and the claimant was such. The Medforth case suggested that that could include anybody interested in the equity of redemption. The strike out had been granted wrongly, and the claim was re-instated. 1 Cites Â Abbey National Plc v Bartholomew [2002] EWCA Civ 453 26 Mar 2002 CA Aldous LJ Land Application for leave to appeal against mortgagee's possession order. [ Bailii ] Â Johnson Security Ltd v Orchard Trading Estate Management Ltd Gazette, 25 April 2002; [2002] EWCA Civ 406 26 Mar 2002 CA Lord Justice Peter Gibson Land, Rating The appellant owned a freehold property on an industrial estate. The land was subject to a rentcharge under which the rent charge owner sought to recover costs of the management of the estate. The appellant said that the charges failed since they sought recovery for payment of the costs of maintenance, and of rating liability of the common parts of the estate, and so were not exclusively for the benefit of the land charged, and were not reasonable. Held: Under the 1977 Act, estate rentcharges could still be created. It was in the interests of the several plots on the estate, that the common parts were maintained, and the rates paid. The rentcharge fell within the exemption, and was reasonable, since it sought to recover no more than the costs incurred. Rentcharges Act 1977 2(3)(c) [ Bailii ] Â Halifax Plc v Olanrewaju [2002] EWCA Civ 518 11 Apr 2002 CA Ward LJ Land Application for permission to appeal against possession order in mortgage action. [ Bailii ] Â The Rt Hon Gerald Arthur James, Earl of Balfour, Viscount Traprain of Whittingehame for Declarator of Fee Simple Proprietorship [2002] ScotCS 103; 2002 SLT 981 11 Apr 2002 SCS Lord Cameron of Lochbroom and Lord Macfadyen and Lord Sutherland Scotland, Land 1 Cites 1 Citers [ ScotC ] - [ Bailii ] Â Young, Regina (on the Application Of) v Secretary of State for the Environment, Food and Rural Affairs and Another [2002] EWHC 844 (Admin) 12 Apr 2002 Admn Judicial Review, Land [ Bailii ] Â Devon County Council v Webber and Another Gazette, 23 May 2002; Times, 27 May 2002; [2002] EWCA Civ 602 19 Apr 2002 CA Lord Justice Keene and Mr Justice Sumner Land The respondent was owner of land. Occasional substantial storms washed quantities of surface soil over the road. The claimant highway authority served notices required part of the land not to be used for arable purposes. After a further storm the authority sought damages for having to clean up the road. The farmer appealed the order against him. Held: The defendants were not liable for the effect of a storm of an extreme once in 200 year level. Liability required reasonable forseeability. The notice had not been served in respect of this particular land, which also suggested unforseeability. Highways Act 1980 151(4) 1 Cites [ Bailii ] Â Healey v Brown [2002] 19 EG 147; [2002] EWHC Ch 1405; (2002) 19 EG 147 25 Apr 2002 ChD David Donaldson QC HHJ Wills and Probate, Land, Equity The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable. Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: "section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable." and "as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land." If section 2 did apply the documents would not satisfy it, and "section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement." However the doctrine of part performance could in this case be applied to impose a trust on the defendant. Law Reform (Miscellaneous Provisions) Act 1989 2 1 Cites 1 Citers [ Bailii ] Â Wilson v Halifax Plc [2002] EWCA Civ 652 25 Apr 2002 CA Peter Gibson LJ Land [ Bailii ] Â Nesbitt v National Assembly for Wales [2002] EWLands LCA_139_2001 26 Apr 2002 LT Land [ Bailii ] Â Anita Carlton v Jerry David Goodman [2002] 2 FLR 259; Gazette, 30 May 2002; [2002] EWCA Civ 545 29 Apr 2002 CA Lords Justice Ward, Mummery and Laws Land, Trusts The defendant claimed an interest in a house. The deceased had been a sitting tenant, and wanted to purchase his house. He could not obtain finance alone, and she joined with him, becoming liable under the mortgage. She did not live in the house until after his death. She claimed the house. No formal document regulated the arrangement. Held: A resulting trust had been established to hold the entire house on trust for the estate in the absence of any actual monetary contribution. The case was "an interesting point on resulting trusts in a case where the purchase of property acquired for the sole use and occupation of one party is partly financed by a joint mortgage on the property" and "Midland Bank v Cooke itself can only be properly understood when it is appreciated that the court was satisfied that by the making of a direct contribution a resulting trust had been established in the wife's favour of some part of the beneficial interest and the real question for the court in that case was to determine what proportions the parties must have been assumed to have intended for their beneficial ownership." 1 Cites 1 Citers [ Bailii ] Â Ahmed v Ahmed and others [2002] EWCA Civ 709 29 Apr 2002 CA Walker LJ Land Renewed application for leave to appeal. [ Bailii ] Â Das and others v Linden Mews Ltd [2002] EWCA Civ 590 1 May 2002 CA Land 1 Cites [ Bailii ] Â Alex Brewster and Sons v Frank Mitchell Caughey and others [2002] ScotCS 123; 2002 GWD 15-506 2 May 2002 SCS Lord Eassie Scotland, Land If a purchaser becomes aware "that there may be a prior purchaser in the same queue for Register House he must ask the latter if he be such a purchaser and in the event of a positive, correct answer yield place to him" 1 Citers [ ScotC ] - [ Bailii ] Â UCB Corporate Services Limited v Christine Ann Williams Times, 27 May 2002; Gazette, 13 June 2002; [2002] EWCA Civ 555 2 May 2002 CA Lord Justice Peter Gibson Land, Equity, Undue Influence The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud. Held: Undue influence occurred when improper means of persuasion were used to procure the complainant's consent such that the consent ought not fairly to be treated as the expression of the complainant's free will. Equity proceeded on the basis that there was no consent. Such would be enough to set aside the transaction as against the wrongdoer, and the lender was fixed with notice of that right. There was no need for the wife to establish that but for the trick, she would not have signed. 1 Cites 1 Citers [ Bailii ] Â Cook and others v Highways Agency [2002] EWLands ACQ_85_2001 3 May 2002 LT Land [ Bailii ] Â Barron, Regina (on the Application of) v Surrey County Council [2002] EWCA Civ 713 7 May 2002 CA Mummery, Dyson LJJ,Sir Swinton Thomas Land Application for leave to appeal against refusal of transfer to administrative court and stay. [ Bailii ] Â Cabletel Surrey and Hampshire Ltd v Brookwood Cemetery Ltd [2002] EWCA Civ 720 9 May 2002 CA Aldous, Mance, Longmore LJJ Land The claimant wished to lay communications cables desired by the frontagers, but under private roadways owned by the defendant. [ Bailii ] Â Lomax and others v Secretary of State for the Transport, Local Government and the Regions and Another [2002] EWHC 921 (Admin) 10 May 2002 Admn Land, Local Government Acquisition of Land Act 1981 23 [ Bailii ] Â Lomax and others v Secretary of State for Transport, Local Government and the Regions and another Gazette, 23 May 2002 10 May 2002 Admn Land, Planning The authority sought compulsory purchase of land which adjoined a motorway. An agreement was made before the enquiry, but the inspector felt that others who were not represented would also be affected, and recommended rejection of the agreement. The Secretary of State proceeded, after substantial correspondence including with the objectors. The objectors complained that though affected they had not been given opportunity to object as required by the rules. Held: For a breach of the rule to have taken place there had to be new material taken into account by the secretary which was causative of the decision, and that, if he had abided by rule 17(4), might have led to a different decision. In this case though the rule had been breached, the applicants could not show that they had been prejudiced in this way. Acquisition of Land Act 1981 23(2) - Compulsory Purchase Rules 1990 17(4) - Town and Country Planning Act 1990 266 Â Michael James Meston Reid (Permanent Trustee on the Estates of Carlene Rose Burnett) v Harvey Leighton Grainger and Moira Elizabeth Grainger 15 May 2002 SCS Lord Coulsfield and Lord Hamilton and Lord MacLean Scotland, Land 1 Cites 1 Citers [ ScotC ] Â Lloyds TSB Bank Plc v Buswell and Another [2002] EWCA Civ 1291 16 May 2002 CA Ward LJ Land Application for leave to appeal mortgagee's possession order. [ Bailii ] Â Wells v Pickering Times, 04 June 2002; Gazette, 27 June 2002 17 May 2002 ChD Mr David Oliver, QC Land, Children, Litigation Practice The rules required a court, looking to enforce a charging order, to look to any other competing proprietary interests. The claimant suggested that this should include the welfare interests of any child occupying the property as his or her home. Held: The welfare interests were not proprietary interests. The rules made no specific provision for such interests and the normal rules applied. Rules of the Supreme Court Order 88, rule 5A(2)(f) Â Barlcays Bank Plc v Alcorn [2002] EWCA Civ 817 17 May 2002 CA Chadwick LJ Land, Litigation Practice, Human Rights Renewed application for leave to appeal. Access to Justice Act 1999 55 - European Convention on Human Rights 8 A1 FP - Administration of Justice Act 1970 36 1 Cites [ Bailii ] Â Half Moon Bay Limited v Crown Eagle Hotels Limited (Appeal No 31 of 2000); [2002] UKPC 24; (Appeal No 31 of 2000) 20 May 2002 PC Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton Registered Land, Land, Commonwealth Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent's predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners. Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered. Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica) 1 Cites [ PC ] - [ PC ] - [ PC ] - [ Bailii ] Â Â Rowley and Another v Secretary of State for Transport Local Government and the Regions; Admn 24-May-2002 - [2002] EWHC 1040 (Admin); [2003] 2 P&CR 27 Â Swoish v East Hampshire District Council [2002] EWLands ACQ_217_2000 28 May 2002 LT Land [ Bailii ] Â Matthews and Another v Environment Agency [2002] EWLands LCA_192_2000 28 May 2002 LT Land [ Bailii ] Â Man O'War Station Limited and Huruhe Station Limited v Auckland City Council (formerly Waiheke County Council) and H M Attorney General for New Zealand (Judgment No 1) [2002] UKPC 28 29 May 2002 PC Commonwealth, Land, Natural Justice PC (New Zealand) It was unreal to suggest that a prior past professional association between a witness and the judge gave rise to a danger of partiality. 1 Citers [ PC ] - [ Bailii ] Â Hallam Land Management Ltd v UK Coal Mining Ltd and another Gazette, 20 June 2002; [2002] EWCA Civ 982 30 May 2002 CA Lords Justice Thorpe, Rix and Arden Land, Contract An option was granted for the sale of land subject to planning consent being granted. Eventually it was sought to exercise the option in respect of part only of the land. Held: Though words in the contract made reference to all or part of the land, the references to the planning application were to the whole site, and in this context the option became exercisable only on the grant of permission for a substantial part of the site. This was not a substantial part. Landscaping works on other parts of the site would not count as development against this background and business context. 1 Cites [ Bailii ] Â Mean Fiddler Holdings Ltd v London Borough of Islington [2002] EWLands ACQ_29_2001 31 May 2002 LT Land LT Accounts for assessment of profits on extinguishment of business - Method of conducting business said to be in breach of covenant - Meaning of "sharing possession or occupation" in alienation clause in lease. [ Bailii ] Â Kinoo Sons Limited v Bibi Sarah Hossen Abdool and The Conservator of Mortgage Appeal No 55 of 2001; [2002] UKPC 30 11 Jun 2002 PC Commonwealth, Land, Contract (Mauritius) - Plots of land had been inherited, and were now in the joint ownership of 20 people. Some sought a sale. A sale was ordered, and the resulting award challenged. The contract provided for a right of substitution for the purchasers of the objectors to the sale, but is was suggested that this was merely a referral to a statutory right which would not apply in this case. Held: A right of substitution is no different from a right of pre-emption, and could be contractual in nature. The right of substitution formed part and parcel of the conditions of sale, notwithstanding that the basis of that right might be wrongly stated. [ PC ] - [ Bailii ] - [ PC ] Â Man O'War Station Limited and Huruhe Station Limited v Auckland County Council (formerly Waiheke County Council) and H M Attorney General for New Zealand (Judgment No 2) [2002] UKPC 32 17 Jun 2002 PC Land, Registered Land, Commonwealth (New Zealand) A road was to be constructed over land but the land was sold with no entry in the registers to indicate any public right of way. The land owner said no right of way existed. The authority said that the dedication followed from the circumstances. Held: Persons with an interest contrary to the claimed easement must consent to any implied dedication. Crown consent had not been obtained, but was not in this case necessary, and upon dedication, the land vested automatically and withoutmore in the Crown. 1 Citers [ PC ] - [ Bailii ] - [ PC ] Â Sladen v Lee [2002] EWCA Civ 969 17 Jun 2002 CA Land, Insolvency Second application for permission to appeal. Insolvency Act 1986 335A [ Bailii ] Â Chirstos v Secretary of State for Environment, Transport and the Regions [2002] EWLands ACQ_69_2001 24 Jun 2002 LT Land [ Bailii ] Â Peskett v Portsmouth City Council Gazette, 04 July 2002 25 Jun 2002 CA Lords Justice Pill and Potter Personal Injury, Land The defendant had land across which a path ran. It had a right angled turn, and users cutting across wore away the land causing a dip, where the claimant tripped and fell. She claimed damages. The council accepted that the short cut was regularly taken, but said there had been no previous incidents or complaints, and appealed a finding of 50% liability for contributory negligence. Held: The judge had been entitled to apportion liability as he had. The council had not been free to assume users would always succeed in avoiding the dangers. All such cases fall to be determined on their own facts. Â Clark v Chandler Gazette, 11 July 2002 28 Jun 2002 CA Lords Justice Thorpe and Chadwick and Mr Justice Wall Land, Contract, Equity, Wills and Probate The respondent had purchased a property in her sole name, but held the property with her husband. On a breakdown of the marriage, he signed a transfer of the property but the consideration was not settled. After his death, it was argued that the document was ineffective under the 1989 Act because it had not been signed by both parties. Held: The property was actually held under a joint tenancy. The failure to settle the consideration was enough to defeat its interpretation even as a conditional disposition. Accordingly the joint tenancy had not been severed, and the widow took the entire property by survivorship. Law of Property (Miscellaneous Provisions) Act 1989 2 - Law of Property Act 1925 53(1)(c) Â Melville J and Elizabeth L Waters and others v Welsh Development Agency Gazette, 12 September 2002; [2002] EWCA Civ 924; [2003] 4 All ER 384; [2002] JPL 1481; [2002] RVR 298 28 Jun 2002 CA Lord Justice Laws, Carnwath LJ Land, Damages The claimant's land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the scheme which it enabled. Held: The Pointe Gourde case remained applicable. The rule is that 'compensation for a compulsory purchase acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition' Carnwath LJ: 'The right to compensation for compulsory acquisition is a basic property right. It is unfortunate that ascertaining the rules upon which compensation is to be assessed can involve such a tortuous journey, through obscure statutes and apparently conflicting case law, as has been necessary in this case. There can be few stronger candidates on the statute book for urgent reform, or simple repeal, than section 6 of and Schedule 1 to the 1961 Act.' Land Compensation Act 1961 6 1 Cites 1 Citers [ Bailii ] Â Bp Oil UK Ltd v Kent County Council [2002] EWLands ACQ_12_2002 28 Jun 2002 LT Land [ Bailii ] Â Â J A Pye (Oxford) Ltd and Others v Graham and Another; HL 4-Jul-2002 - Times, 05 July 2002; [2002] UKHL 30; [2002] 3 All ER 865; [2002] 3 WLR 221; [2003] 1 AC 419; [2002] NPC 92; [2002] HRLR 34; [2003] 1 P & CR 10; [2002] 28 EGCS 129; [2002] 2 P & CR DG22 Â Ali v Khan [2002] EWCA Civ 974 11 Jul 2002 CA The Vice-Chancellor Trusts, Land [ Bailii ] Â C-Vanci and others v Edwards and others [2002] EWCA Civ 1177 15 Jul 2002 CA Ferris J Land [ Bailii ] Â Regina (Hargrave and Another) v Stroud District Council Times, 05 August 2002; [2002] EWCA Civ 1281; [2003] JPL 351; [2003] 1 P&CR 1 22 Jul 2002 CA Schiemann LJ, Buxton LJ and Longmore LJ Land, Local Government, Land The applicants had sought to vary a footpath to move it further away from their house. The parish council objected. The council had decided that it would be expedient under the Act to divert it, but went on to decide against a diversion and against referring the decision to the Secretary of State. The land owner appealed a decision upholding the council's decision Held: The Act left discretions with the Local Authority, both as to whether to order the footpath to be diverted and as to whether the question was to be referred to the Secretary of State, even after it had decided that it would be expedient to move it. It had no duty to make the order particularly where there were sustained objections. Highways Act 1980 119 1 Cites 1 Citers [ Bailii ] Â Regina (Hargrave and Another) v Stroud District Council Times, 05 August 2002; [2002] EWCA Civ 1281; [2003] JPL 351; [2003] 1 P&CR 1 22 Jul 2002 CA Schiemann LJ, Buxton LJ and Longmore LJ Land, Local Government, Land The applicants had sought to vary a footpath to move it further away from their house. The parish council objected. The council had decided that it would be expedient under the Act to divert it, but went on to decide against a diversion and against referring the decision to the Secretary of State. The land owner appealed a decision upholding the council's decision Held: The Act left discretions with the Local Authority, both as to whether to order the footpath to be diverted and as to whether the question was to be referred to the Secretary of State, even after it had decided that it would be expedient to move it. It had no duty to make the order particularly where there were sustained objections. Highways Act 1980 119 1 Cites 1 Citers [ Bailii ] Â Gwilliam v West Hertfordshire Hospitals NHS Trust and Others Times, 07 August 2002; Gazette, 03 October 2002; [2002] EWCA Civ 1041; [2002] 3 WLR 1425; [2003] QB 443 24 Jul 2002 CA Lord Woolf, Lord Chief Justice, Lord Justice Waller and Lord Justice Sedley Negligence, Land, Personal Injury, Damages The claimant sought damages. She had been injured after the negligent erection of a stand which was known to be potentially hazardous. The contractor was uninsured, and the claimant sought damages from the Hospital which had arranged the fair in its grounds to raise funds. Held: The hospital was liable under the Act. A splat wall, where people bounced off a trampoline to be stuck to a wall by Velcro. The hospital should have known this was dangerous. They could avoid liability by employing a reputable and competent contractor. They had requested sight of his insurance but did not know it had expired before the day. The hospital had a duty to the claimant, but had not fulfilled it. The actual claim was the difference between what had been recovered and what would have been recoverable if the contractor had been insured. The claim was therefore one of economic loss. Lord Woolf categorised the claim not as one for economic loss but as a claim for damages for personal injury. The hospital owed the claimant a duty of care under s 2 of the Occupiers' Liability Act 1957 to take reasonable care for her safety in using the premises to which she had been invited. That included a duty to take reasonable care to satisfy itself as to the competence of the supplier of the splat-wall. In order to discharge that duty the hospital ought to have asked him about his insurance position as evidence which was relevant to whether or not he was likely to be competent. Having asked the question, it was reasonable for the hospital to accept the supplier's answer. Waller LJ considered that on the particular facts of the case the occupier's duty of care to its visitors required it to take reasonable steps to satisfy itself as to the supplier's financial viability to meet any claim against it, whether by insurance or otherwise. He agreed with Lord Woolf that the hospital was under no duty to verify the supplier's statement about his insurance position by requiring to see a copy of the policy. Sedley LJ said that there was a difference in principle between harm to a person or property and insurance against inability to recover damages for such harm. The occupier owed a duty to take reasonable care to use only competent contractors, but he did not consider that the occupier owed any duty of care to its visitors to take steps to ensure that its independent contractors would be insured or otherwise able to meet any claim for damages for negligence. He expressed concern about the ramifications if the court were to impose such a duty on a public institution which invited people into its grounds. He asked rhetorically: "What is there, in a legal system which offers equality before the law by seeking to treat like cases alike, to contain this case in a category peculiar to its own facts? If the ambit of a public institution's duty to its visitors embraces an obligation to check on contractors' insurance, why will a private person whose garden is used for a local fete not equally be liable to pay a sum representing full personal injury damages to a visitor injured, perhaps badly, by the negligent supervision of a coconut shy or a greasy pole by an uninsured stall holder? Or why will a householder who fails to check that his or her builder is insured not have to pay heavy damages to a neighbour who has been unable to make a worthwhile claim against the builder when a nail through a water pipe brings the neighbour's ceiling down or a carelessly handled blow torch burns their house down?" Occupiers' Liability Act 1957 2(4)(b) 1 Cites 1 Citers [ Bailii ] Â Mulvaney v Jackson, Gough, Holmes and Holmes Times, 27 August 2002; Gazette, 03 October 2002; [2002] EWCA Civ 1078; [2003] P & CR 16; [2002] 44 EG 175; [2003] 4 All ER 83; [2003] 1 WLR 360 24 Jul 2002 CA Lord Justice Simon Brown, Lord Justice Mance and Lord Justice Latham Land Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed. Held: The use of the land over the years as a communal garden had created an easement and the defendants had gone along with the use. The judge had made the wrong order in allowing for the restoration of a particular flower bed, he should rather have declared the right to use the flower bed for communal purposes in accordance with the right established. An activity which would be justified by an express grant does not necessarily support the existence of the same right claimed by prescription since the evidence, overall, may establish a different right or no right at all. 1 Cites 1 Citers [ Bailii ] Â Richards and Another v Somerset County Council [2002] EWLands ACQ_23_1999 25 Jul 2002 LT Land [ Bailii ] Â Chan, Chun v Leung, Ho [2002] EWCA] Civ 1075 29 Jul 2002 CA Lord Justice Rix, Mr Justice Nelson, Lord Justice Johnathan Parker Land, Trusts The claimant sought to assert her interest in a house purchased by a company in debt to the respondent for whom she had worked and with whom she had had a relationship. The company was insolvent. She claimed he had promised her a house, and that it had been purchased under that promise, and that she was protected under both 1996 Acts. The defendant appealed orders declaring her interest. Held: the decision followed largely from the judge's assessment of the parties and the exercise of his discretion. The claimant had acted to her detriment in accepting the gift, and the property which was proper for the two when living together remained appropriate when she lived there alone. Family Law Act 1996 33(3) 33(4) - Trusts of Land and Appointment of Trustees Act 1996 14 1 Cites [ Bailii ] Â Hawkes v Howe [2002] EWCA Civ 1136 29 Jul 2002 CA Mr Justice Sumner, Lord Justice Keene Land, Limitation The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner replaced the garage. He claimed to have acquired the land by prescription. Held: The judge had failed to make an essential finding on an issue as to the adverse possession, and the matter ought to have been reheard. However the overriding objective required a proportional approach, and a rehearing would prejudice the parties. An order was made reducing the damages, in the hope that this would conclude the matter. 1 Cites [ Bailii ] Â Adamson v Halifax Plc [2002] EWCA Civ 1134 30 Jul 2002 CA Land, Damages [ Bailii ] Â Â Keelwalk Properties Ltd v Betty Waller and Another; CA 30-Jul-2002 - [2002] EWCA Civ 1076; [2002] 3 EGLR 79 Â Â Smith and Another v South Gloucestershire Council; CA 31-Jul-2002 - Times, 30 August 2002; Gazette, 17 October 2002; [2002] EWCA Civ 1131 Â Â Brazil v Brazil; CA 31-Jul-2002 - Times, 18 October 2002; [2002] EWCA Civ 1135; [2003] CP Rep 7 Â Â Lavin v Johnson; CA 31-Jul-2002 - [2002] EWCA Civ 1138 Â Â Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant; CA 31-Jul-2002 - Times, 09 September 2002; Gazette, 03 October 2002; [2002] EWCA Civ 1181; [2003] 1 WLR 284 Â Â Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia); ChD 31-Jul-2002 - [2002] EWCA 1623 (Ch) Â Padgham and another v Rochelle and another Gazette, 03 October 2002 1 Aug 2002 ChD Mr Launcelot Henderson QC, sitting as a deputy judge of the division Agriculture, Land, Undue Influence The testator occupied farmland and buildings. He was helped in maintaining the farm by his son, but gave the land to his grandchildren by his will. The son claimed to have been granted an informal written agricultural tenancy by his father before his death. Held: The arrangement was not intended to create legal relations, and no tenancy was created. The agreement was sufficient to satisfy section 52, but in construing it, the court had to allow for the fact that the deceased had placed particular trust and confidence in the son, and a presumption of undue influence arose. The claimant had not displaced that presumption, and the tenancy agreement was set aside. Law of Property Act 1925 52 1 Cites Â Hodder v Southern Water Services Ltd [2002] EWLands LCA_146_1998 1 Aug 2002 LT Land [ Bailii ] Â Pankhania and Another v Hackney and Another [2002] EWHC 2441 (Ch) 2 Aug 2002 ChD Rex Tedd QC J Contract, Land, Torts - Other The claimant sought damages alleging misrepresentation of land sold at auction. 1 Cites [ Bailii ] Â Kirkwood (Inspector of Taxes) v Boland [2002] EWLands TMA_15_2001 12 Aug 2002 LT Land [ Bailii ] Â Druce v Druce [2002] EWCA Civ 1353 13 Aug 2002 CA Land 1 Citers [ Bailii ] Â Lloyds TSB Bank Plc v Pygott [2002] EWCA Civ 1315 22 Aug 2002 CA Aldous LJ Land Mortgage possession action. [ Bailii ] Â Flack v Lanzante [2002] EWCA Civ 1287 28 Aug 2002 CA Land Renewed application for leave to appeal. Boundary dispute. Boundary agreement shown - leave refused. 1 Cites [ Bailii ] Â Matthews v Walsall Metropolitan Borough Council [2002] EWLands CON_38_2002 13 Sep 2002 LT Land [ Bailii ] Â Westminster City Council v Haw [2002] EWHC 2073 (QB) 4 Oct 2002 QBD Gray J Land, Torts - Other The court was asked as to the interaction between the right and the duty of a local authority to remove obstructions from its highways, on the one hand, and the right of the individual citizen to use those highways to exercise his or her right to freedom of expression, on the other hand. It is an application by Westminster City Council, which is the local authority responsible for the highways, including the pavements, in Parliament Square in London, to restrain Mr Brian Haw from obstructing the pavement opposite the House of Commons by displaying there a considerable number of placards supporting his protest against the policies of the Government in relation to Iraq. 1 Cites [ Bailii ] Â Valentine v Allen and others [2002] EWCA Civ 1819 9 Oct 2002 CA Land Boundary dispute. [ Bailii ] Â Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions Gazette, 31 October 2002; Times, 07 November 2002; [2002] EWCA Civ 1430 15 Oct 2002 CA Potter, Chadwick, Wall LLJ Land, Costs The appellant had sought compensation after compulsory acquisition of his land. He had beaten the final offer made by the respondent, but the tribunal had judged the landowner's offer itself to be so high that it awarded only part of the costs. He appealed. Held: A finding as to the applicant's own offer could not justify the reduction in the costs award. The tribunal could disallow costs for a special reason, but the normal award must allow for the reasonable and necessary expenses of determining the amount of the disputed compensation. Valuation is an exercise in judgement, and is imprecise. It would be rare to disallow costs on such a basis. In truth here the tribunal had been requested to make fruitless comparisons with other sites, which had unnecessarily incurred costs, and the award stood. Land Compensation Act 1961 5 [ Bailii ] Â Secretary of State for Defence v Spencer and Another Times, 30 October 2002; Gazette, 14 November 2002; [2002] EWHC 2116 (CH); [2003] 1 WLR 75 17 Oct 2002 ChD Neuberger J Agriculture, Land An agricultural tenancy was varied by the addition of a small plot of land. The tenant argued that this led to a postponement of the review under the Act. The landlord appealed. Held: The addition of a plot could not properly be seen as a variation of the boundaries, but the description of the land in the tenancy could properly be seen as one of its terms, and a small variation of the terms did not call into effect paragraph 4(1). Agricultural Holdings Act 1986 Sch2 Para 4(1) 6 1 Cites 1 Citers Â Railtrack Plc (In Railway Administration) v Guinness Ltd [2002] EWCA Civ 1431 17 Oct 2002 CA Lord Justice Carnwath Land, Damages Application for leave to appeal against order of lands tribunal. 1 Cites 1 Citers [ Bailii ] Â North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd Times, 31 October 2002; [2002] EWCA Civ 1719 23 Oct 2002 CA Thorpe, Rix, Arden LLJ Land, Civil Procedure Rules An agreement was made for a redevelopment of land. The council sought an order requiring specific performance by the respondent of its obligations. The council sought summary judgment, which the respondent resisted claiming that it was presently impossible to proceed. Held: The judge had been wrong, on an application for summary judgement, to proceed on a mini-trial to see whether a proper issue as to impossibility arose. There was doubt on another issue as to the need for a roundabout, and it was wrong to order the company to build it. The proper test was to ask whether the defendant had an arguable case, the judge should not decide it as at a final action. Civil Procedure Rules 1 Cites [ Bailii ] Â Hazelwood v Hazelwood [2002] EWCA Civ 1594 24 Oct 2002 CA Land Boundary dispute. [ Bailii ] Â Beresford and Another v Williamson and others [2002] EWCA Civ 1632 25 Oct 2002 CA Land, Trusts [ Bailii ] Â P and S Platt Ltd v Crouch and Another [2002] EWHC 2195 (Ch) 25 Oct 2002 ChD Land [ Bailii ] Â Mwh and H Ward Estates Ltd v Monmouthshire County Council [2002] EWCA Civ 1915 31 Oct 2002 CA Land Land Drainage Act 1991 [ Bailii ] Â Bradford and Bingley Plc v Crichton and Another [2002] EWCA Civ 1658 4 Nov 2002 CA Land Appeal in possession proceedings. [ Bailii ] Â Â Earl of Balfour v Keeper of the Registers of Scotland and Others; HL 6-Nov-2002 - [2002] UKHL 42; 2002 SLT 1385; 2002 GWD 36-1216; 2003 SC (HL) 1; 2003 SCLR 125 Â Brown v Bridgnorth District Council [2002] EWLands ACQ_63_2002 6 Nov 2002 LT Land LT COMPENSATION - compulsory acquisition of house in disrepair - value in good repair - comparables - cost of repairs - estimate - builder's tender - home loss payment - jurisdiction of Lands Tribunal - surveyor's fees [ Bailii ] Â Downing v Lissimore [2002] EWCA Civ 1698; [2003] 2 FLR 308 6 Nov 2002 CA Trusts, Land Application for order to reflect interest of cohabiting partner in house. 1 Citers [ Bailii ] Â Barnes v Abbey National Plc [2002] EWCA Civ 1741 6 Nov 2002 CA Land Application for leave to appeal against refusal of adjournment of possession hearing. The applicant again did not attend. Application dismissed. [ Bailii ] Â Robinson v East Riding of Yorkshire Council [2002] EWCA Civ 1796 7 Nov 2002 CA Land Listed buildings - tree preservation order not confirmed and lapsed. [ Bailii ] Â L E Jones (Insurance Brokers) Ltd v Portsmouth City Council Times, 21 November 2002; Gazette, 16 January 2003; [2003] 1 WLR 427; [2002] EWCA Civ 1723 7 Nov 2002 CA Aldous, Dyson LJJ Land, Negligence, Torts - Other The claimant sought compensation for damage caused to his property by the roots of trees on the verge outside his premises. Held: The respondent did exercise lawful control over the trees, even though it did not own the land on which they grew, and therefore could be liable in negligence, and in nuisance for the damage they might cause. The highway might also be responsible, but that did not exclude the responsibility of the respondent, who had a right and a duty to maintain the roads. The basis of liability of an occupier for a nuisance on his land is not his occupation but that, by virtue of his occupation, he has it in his power to take the necessary measures to prevent the nuisance. The tree owner should be given a reasonmable opportunity to remedy the nuisance: "…What is a reasonable opportunity to abate the nuisance is a question of fact. " 1 Cites 1 Citers Â Roberts and Another v South Gloucestershire Council [2002] EWCA Civ 1568; [2003] 18 EG 114; [2003] RVR 43; [2003] P & CR 411 7 Nov 2002 CA Carnwath LJ, Potter LJ Land, Damages The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals extraction. Held: The appeal failed. Carnwath LJ said: "The planning assumptions in the 1961 Act are intended to facilitate the task at arriving at fair compensation. With or without permission for a road, the claimant had no expectation in the real world of realising the value of his minerals in the foreseeable future, for the reasons set out in the decision on the section 17 application, and there is no reason for him to be compensated for its loss." Land Compensation Act 1961 5(4) 39(1) 1 Cites [ Bailii ] Â Inglewood Investments Company Ltd v Baker [2002] EWCA Civ 1733 8 Nov 2002 CA Dyson LJ Land, Torts - Other The court considered a claim for the adverse possesion of land. Held: Dyson LJ said: "to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to possess. That has two elements. First a subjective element requiring the person, the trespasser, to establish that he intended to possess the land, and also an objective element, namely an establishment of what Clarke LJ referred to as a possession which was apparent or would be apparent to the owner if he visited the site." Dyson LJ referred to Batt v Adams and said: "In this particular case, the purpose of the fence appeared to be, and Mr Baker said it was, to keep sheep in. It does not seem that he would have put that fence up if he had been grazing cattle rather than sheep. In those circumstances it was open to the judge to conclude that there was no intention of Mr Baker to possess the land." Limitation Act 1980 15 1 Cites 1 Citers [ Bailii ] Â Yorkshire Traction Company Ltd v South Yorkshire Passenger Transport Executive [2002] EWLands ACQ_191_2000 8 Nov 2002 LT Land [ Bailii ] Â Jory v Secretary of State for Transport, Local Government and the Regions and another Gazette, 21 November 2002; Times, 03 December 2002; Gazette, 23 January 2003 12 Nov 2002 Admn Sullivan J Planning, Land The claimant took part in a planning appeal, objecting to a development. After the appeal, the inspector agreed different conditions, but without allowing the claimant to be involved. He appealed. Held: The inspector was obliged to deal fairly. The claimant was not entitled as of right to attend but had done so, and the issues raised were at the heart of the dispute. The inspector was entitled to come to his one conclusion, but having discussed matters post hearing with the other parties he should have contacted the claimant. Decision set aside, Town and Country Planning (Hearings Procedure) (England) Rules 2000 (2000 No 1626) 14(3) 1 Cites Â Massey and Another v Boulden and Another Times, 27 November 2002; Gazette, 23 January 2003; [2002] EWCA Civ 1634; [2003] 2 All ER 87; [2003] 1 WLR 1792; [2003] P & CR 355 14 Nov 2002 CA Simon Brown, Mantell, Sedley LJJ Land, Limitation The claimants said they had acquired a right of way by vehicle over land, a village green, having driven over it for more than forty years. It was responded that the act of driving over the land other than on a track had been an unlawful act, and as such could not be the basis for acquiring a right by prescription. Held: Under the 1988 Act, such driving was a criminal offence, even though as a penal statute it must be interpreted restrictively. The common land fell within the statute. However the 2000 Act and 2002 Regulations would now create the right to purchase such a right of way. Countryside and Rights of Way Act 2000 68 - Road Traffic Act 1988 34(1) - Vehicular Access Across Common and Other Land (England) Regulations 2002 (2002 No 1711) 1 Cites 1 Citers [ Bailii ] Â Pentrehobyn Trustees (Trustees of Pentrehobyn Settlement) v National Assembly for Wales [2002] EWLands ACQ_116_2000 14 Nov 2002 LT Land, Damages LT COMPENSATION – land acquired for bypass – 17 years between announcement of scheme and entry – no planning permission to be assumed under statutory assumptions – whether planning permission for B1 development would have been granted – whether hope value – approach to these questions – whether cancellation assumption or no-scheme world – negative section 17 certificate – effect of this – held correct approach no-scheme world assumption – claimants failing to show permission would have been granted or hope value. [ Bailii ] Â Regina v Secretary of State for Environment Transport and the Regions ex parte O'Byrne Times, 18 November 2002; Gazette, 28 November 2002; [2002] UKHL 45; [2003] 1 All ER 15; [2003] HLR 30; [2002] 48 EGCS 138; [2002] 1 WLR 3250; [2002] NPC 142; [2003] BLGR 1 14 Nov 2002 HL Bingham of Cornhill, Hope of Craighead, Hutton, Scott of Foscote, Rodger of Earlsferry, LL Land, Local Government, Housing The applicant sought to exercise her right to buy a property she had occupied of her local authority. It was in the green belt, and the authority declined to sell it until they had obtained authorisation for the sale. The authority appealed an order requiring the sale. Held: The 1985 Act made no reference to the 1938 Act, because it was not imagined that they would conflict. The 1938 Act restricted voluntary sales by Authorities. The 1985 imposed obligations to sell. The obligations created did not conflict. The obligation to sell stood. Green Belt (London and Home Counties) Act 1938 5 - Housing Act 1985 118 1 Cites [ House of Lords ] - [ Bailii ] Â Barnes v Derby Diocesan Board of Finance and Another Times, 22 November 2002 14 Nov 2002 ChD Etherton J Ecclesiastical, Land, Charity Permission was sought to sell land within to the parish, and directions sought as to the application of the proceeds of sale. Held: The land had been transferred to the diocesan board of finance on the merger of two parishes, and was held for parochial or diocesan purposes. This was not special property, and since it was no longer needed, it could be sold, but the proceeds were to be applied within the parish and not for general purposes of the diocese. Pastoral Measure 1983 31(1)(1)(d) Â British Waterways Board v London Power Networks Plc, Secretary of State for Trade and Industry Times, 21 November 2002; Gazette, 30 January 2003; [2002] EWHC 2417 (Ch) 15 Nov 2002 ChD The Vice-Chancellor Utilities, Land The landowner objected to the proposal of the second respondent to grant, in favour of the first respondent, a wayleave to lay cables through tunnels owned by the claimant landowner. Held: The tunnel structure was properly seen as land within the Act, and the way-leaves were properly granted. The argument that the meaning of the word 'land' must be restricted so as to avoid bizarre conclusions did not work. The right granted applied to all the subsections, or to none of them. Wayleaves through structures on or under land did not differ. Electricity Act 1989 Sch 4 para 6 [ Bailii ] Â Regina (Kate Ashbrook) v East Sussex County Council [2002] EWCA Civ 1701; [2003] 1 P & CR 13 20 Nov 2002 CA Lord Justice Dyson, Lord Justice Schiemann, Lady Justice Arden Land, Local Government, Planning The claimant complained that the respondent had failed properly to secure removal of an admitted obstruction to a public footpath. The landowner had applied for a diversion of the footpath, which the respondent recommended for adoption, but the complainant had objected that the respondent had failed to follow its own policies, in that it should have considered first whether the obstruction could reasonably have been removed. The matter was to be referred to the Secretary of State for a possible public enquiry. Held: The policy document was not formally adopted, but the council had not taken proper account of the existence of a continued flouting of a court order by the landowner, and the Order for diversion must be quashed and the Council must reconsider the application. Highways Act 1980 119 1 Cites [ Bailii ] Â Sun Life Assurance Society Plc v Poole [2002] EWCA Civ 1895 21 Nov 2002 CA Mummery LJ Land [ Bailii ] Â Thomas's Executors (Executors of Edward Thomas (Deceased)) v Merthyr Tydfil County Borough Council [2002] EWLands ACQ_206_2000 22 Nov 2002 LT Land [ Bailii ] Â Patel and Another v Walsall Metropolitan Borough Council [2002] EWCA Civ 1810 25 Nov 2002 CA Land, Damages Compensation for entry into land under compulsory purchase [ Bailii ] Â James and Another v Opanubi [2002] EWCA Civ 1898 29 Nov 2002 CA Land, Limitation adverse possession [ Bailii ] Â Fluck and Another v Walsall Metropolitan Borough Council and Another [2002] EWCA Civ 1801 29 Nov 2002 CA Land [ Bailii ] Â Mortgage Express v Pickup and Another [2002] EWCA Civ 1876 2 Dec 2002 CA Land, Banking [ Bailii ] Â Ryde International Plc v London Regional Transport [2002] EWLands ACQ_147_2000 4 Dec 2002 LT Land COMPENSATION - Compulsory acquisition of a development of flats and bungalows, constructed as sheltered accommodation for the elderly - open market value - whether units would have been sold individually or to a single purchaser - assessment of holding costs - interim decision - compensation awarded pounds 2,060,000 [ Bailii ] Â Â Malekshad v Howard de Walden Estates Limited; HL 5-Dec-2002 - Times, 06 December 2002; [2002] UKHL 49; [2003] 1 AC 1013; [2002] 3 WLR 1881; [2003] 1 All ER 193; [2002] 50 EGCS 114; [2003] 1 EGLR 151; [2002] NPC 160; [2003] HLR 31; [2003] 1 P & CR DG18; [2003] L & TR 13 Â Morris v Jones and others [2002] EWCA Civ 1790; [2002] All ER (D) 82; [2001] EMLR 800 6 Dec 2002 CA Lord Justice Clarke, Lord Justice Ward, Sir Anthony Evans Land, Construction Defective Premises Act 1972 1 Cites [ Bailii ] Â Clos Farming Estates v Easton and Another [2002] NSWCA 389 9 Dec 2002 Ms McAllister Land, Commonwealth (New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held that there was no easement creating an interest in land. The Court of Appeal agreed holding that not only were the rights claimed novel but that they breached what is fundamental to constituting an easement in two respects. First, the connection between the benefited land and the supposed servient tenement went no further than to render the latter but "a convenient incident to the exercise of the right". As it is put in the headnote "The imperatives of the commercialising of the viticulture operation cannot be seen as necessarily supporting a finding that the rights conferred do sufficiently accommodate the dominant tenement". Secondly, the owners of the servient tenement were left with mere rights of residual recreational activities that are totally subordinated to the overarching rights of Clos Farming Estates. The rights of the servient owner were so attenuated that they no longer met the description of exclusive possession. Ms McAllister said that in this context "accommodation" firstly required that: "there be a natural connection between the dominant and servient tenement. The right must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer an advantage on the owner of that tenement, as would a mere contractual right." 1 Citers [ Austlii ] Â Raja (Representing the Estate of the Late Mohammed Sabir Raja) v Van Hoogstraten, Stitchacre Limited, and Others [2002] EWHC 2729 (Ch) 12 Dec 2002 ChD The Honourable Mr Justice Peter Smith < Land [ Bailii ] Â Smith v Spaul Times, 28 December 2002; [2002] EWCA Civ 1830 16 Dec 2002 CA Kay, Arden LJJ Landlord and Tenant, Land The landlord sought to forfeit the lease for breach of a repairing covenant. The mortgagee had gone into possession, and having received the s146 notice, had served a counter-notice under the 1938 Act. The mortgagee having assigned the lease to the respondent, and the landlord seeking forfeiture, the respondent argued that the Landlord was obliged, following the counter-notice, first to seek the consent of the court. Held: The mortgagee's interest was less than that of the lessee, and he was not able to serve a counter-notice. Mortgagee's of leasehold properties must know of the risk, and ensure that the property was repaired by the tenant. Since the counter-notice was invalid, the landlord did not require permission from the court to forfeit the lease. Law of Property Act 1925 146 - Leasehold Property (Repairs) Act 1938 1(3) 1 Cites [ Bailii ] Â Â Commission for New Towns and Another v JJ Gallagher Ltd; ChD 16-Dec-2002 - [2002] EWHC 2668 (Ch); [2003] 2 P&CR 24 Â Alan John Deakin, Jillian Deakin v Ian Dudley Corbett, Elaine June Corbett, Halifax Plc Times, 28 December 2002; Gazette, 13 March 2003; [2002] EWCA Civ 1849; [2005] 1 WLR 964 18 Dec 2002 CA Mr Justice Scott Baker Lord Justice Schiemann The Honourable Mr Justice Pumfrey Land, Torts - Other The home owners requested the setting aside of the sale of their house after a re-possession, alleging impropriety, and that it had been sold at an undervalue. The respondent society had a rule that properties taken into possession could not be purchased by its own employees. The property had been purchased in breach of that rule. Held: An impropriety which might allow a sale to be set aside would have to relate to the person taking possession. The lender had been deceived by its employee, and had not acted in bad faith, and no right was conferred on the original owners. The lender might have a right to avoid the transaction, but not the mortgagor. Pumfrey J: "section 104(2) makes it clear that the purchaser is not protected if he has actual knowledge of the impropriety. But if the purchaser has no notice of the impropriety, then on the face of it he takes free. Thus, the completed sale by a mortgagee pursuant to his statutory power is vulnerable only if the purchaser has knowledge of, or participates in, an impropriety in the exercise of the power." Law of Property Act 1925 104(2) 1 Citers [ Bailii ] Â Rowland v The Environment Agency Times, 28 December 2002; [2002] EWHC 2785 (Ch) 19 Dec 2002 ChD The Hon Mr Justice Lightman Transport, Land Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that part of the Thames had been extinguished. Held: The various statutory provisions had not granted to the respondent any power to remove rights of navigation. The 1885 Act did not apply and gave the claimant no assistance. The agreement restricting access had not been in place for twenty years, and had only been of a temporary nature. No legitimate expectation that public rights had been extinguished could be established, because the respondent had no statutory power to extinguish rights. Thames Preservation Act 1885 2 5 1 Cites 1 Citers [ Bailii ] Â Abbahall Ltd v Smee Times, 28 December 2002; Gazette, 13 March 2003 19 Dec 2002 CA Chadwick LJ, Munby J Land, Landlord and Tenant The parties were respective owners of interests in flying freehold flats. An order had been made allowing access to make repairs to the roof, and the claimant now appealed an order requiring it to pay a greater part of the costs because of the other owner's impecuniosity. Held: The roof served to protect both parties, and it was artificial to distinguish as to benefit, and in principle the burden should be shared equally. The respondent's duty was to make a contribution to the cost of repairs. Those responsibilities could not vary according to the relative financial positions of the owners from time to time. Appeal allowed. Â Raja v Austin Gray (A Firm) [2002] EWCA Civ 1965; [2003] 1 EGLR 91; [2003] BPIR 725; [2003] 13 EG 117; [2003] 4 EGCS 151; [2003] Lloyd's Rep PN 126 19 Dec 2002 CA Peter Gibson LJ Land, Professional Negligence A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: "(1) A mortgagee with the power of sale is not a trustee of that power, the power being given to the mortgagee for his own benefit. (2) A mortgagee is not under a general duty of care to the mortgagor and can act in his own interests in deciding whether and when he should exercise his power of sale. (3) A mortgagee, however, is subject to an equitable duty to act in good faith and to obtain the best price reasonably obtainable at the time he decides to sell. That duty is owed to those interested in the equity of redemption. They include the mortgagor, other mortgagees and a guarantor of the mortgage debt, but they do not include a tenant at will of the mortgaged property, nor, where the mortgagor is a trustee, a beneficiary of the trust." 1 Cites 1 Citers [ Bailii ] Â Abbahall Ltd v Smee [2002] EWCA Civ 1831; [2003] 2 EG 103; [2003] 1 All ER 465; [2003] 28 EG 114; [2003] 1 WLR 1472; [2003] 2 EGLR 66; [2003] HLR 40 19 Dec 2002 CA Chadwick LJ, Munby J Land [ Bailii ] Â
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