Appeal from refusal to vary restrictive covenant. Judges: Lord Justice Laws Citations: [2007] EWCA Civ 1007 Links: Bailii Statutes: Law of Property Act 1925 84 Jurisdiction: England and Wales Land Updated: 28 June 2022; Ref: scu.470483
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by necessity. Held: The defendant’s appeal succeeded. Public policy could … Continue reading Nickerson v Barraclough: CA 2 Jan 1981
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and created a further lease. Held: The judge was right to hold that, following the transfer, … Continue reading Scribes West Ltd v Relsa Anstalt and others: CA 20 Dec 2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant. Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the tenant liable to finding himself in breach of covenant in circumstances … Continue reading Blumenthal v The Church Commissioners for England: CA 13 Dec 2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally suggested a loan, but then changed. Disagreements persisted after completion. Held: There was insufficient agreement to constitute … Continue reading Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd: ChD 9 Nov 2004
Appeal by the Defendants against an order declaring that the flank wall of 39HP which adjoins the Garden is a party wall within the meaning of section 38(1) of the 1925 Act and of section 20 of the 1996 Act. The issue on the appeal is whether the judge was right to make those declarations … Continue reading Wellington Properties Ltd v Second Duke of Westminster, Trustees of The Will of and Another: ChD 13 Nov 2018
The applicants applied to discharge or modify a restrictive covenant on land in their freehold ownership. Citations: [2001] EWCA Civ 507 Links: Bailii Statutes: Law of Property Act 1925 Jurisdiction: England and Wales Land Updated: 27 June 2022; Ref: scu.218106
Appeal from order allowing modification of restrictive covenants. Judges: Robert Walker LJ Citations: [2001] EWCA Civ 380, [2002] 1 P and CR 4 Links: Bailii Statutes: Law of Property Act 1925 84 Jurisdiction: England and Wales Land Updated: 23 June 2022; Ref: scu.218053
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that this was invalid service, and that later service out of time could not revive the claim. Held: … Continue reading Firstdale Ltd v Quinton: ComC 5 Aug 2004
The court handed down a New Practice Direction 52 for grounds of appeal, decisions in permissions to appeal, notices to respondents of appeals, appeal bundles etc. Judges: Mr Justice Brooke Lord Justice Mance Lord Justice Dyson Citations: [2004] EWCA (Civ) 835, Times 08-Jul-2004, [2005] CP Rep 2, [2005] 1 Costs LR 18 Links: Bailii Statutes: … Continue reading Scribes West Limited v Relsa Anstalt and Another (No 1): CA 1 Jul 2004
An intended assignment of a tenancy which had not been completed in writing by deed was ineffective as against Landlord. An assignment of a weekly tenancy must be by deed if it is to be valid. Citations: Gazette 22-Jan-1992, [1992] 1 All ER 744 Statutes: Law of Property Act 1925 53 Jurisdiction: England and Wales … Continue reading Crago v Julian: CA 22 Jan 1992
Judges: Vice-Chancellor, The Vice-Chancellor Citations: [2004] EWHC 847 (Ch) Links: Bailii Statutes: Law of Property Act 1925 2(1) Jurisdiction: England and Wales Citing: Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980 Wife in Occupation had Overriding InterestThe wife had made a substantial financial contribution to the purchase price of the house which … Continue reading National Westminster Bank Plc, Malhan Malhan v Malhan, The Secretary of State for Consitutional Affairs and Lord Chancellor: ChD 22 Apr 2004
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later. Held: Under the 1985 Act completion would require writing, intention and delivery. Sealing was insufficient. Section 74 of the 1925 Act did not refer to delivery. … Continue reading Bolton Metropolitan Borough Council v Torkington: CA 31 Oct 2003
The defendant and his wife separated when she left the flat they shared. She accepted a new tenancy of other premises. The landlord claimed possession of the flat, saying that the tenancy had ended. Held: There was no express surrender within the 1989 Act. The landlord claimed an implied surrender under the 1925 Act. That … Continue reading Ealing Family Housing Association Ltd v McKenzie: CA 10 Oct 2003
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other terms were quite inconsistent with a tenancy at will. … Continue reading Binions v Evans: CA 27 Jan 1972
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord. Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and if the amount of that entitlement is reduced or extinguished at common law by money … Continue reading Smith v Muscat: CA 10 Jul 2003
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating Act, the 1925 Act should not be read to change the common law. Held: … Continue reading Beswick v Beswick: HL 29 Jun 1967
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription. Held: The use of a right of way over a common by vehicles … Continue reading Roland Brandwood and others v Bakewell Management Ltd: CA 30 Jan 2003
Tenants in a shopping precinct sought to enforce restrictive covenants directly against other tenants. Held: The leases were in the same form, and covenants had been imposed to restrict the uses to avoid conflict. The scheme had the characteristics required of a letting scheme. It was not necessary to look beyond the leases themselves. The … Continue reading Williams, Williams v Kiley T/A CK Supermarkets Limited: CA 21 Nov 2002
A couple bought a property and registered it in their own names with substantial financial assistance from the parents of one of them. The parents occupied the house with them. Without telling the parents, the owners borrowed again, executing further charges. Held: The fact of occupation did not add to the parents’ rights as equitable … Continue reading City of London Building Society v Flegg And Another: HL 14 May 1987
The claimants asserted a right to possession of land, and the defendant resisted, claiming a proprietary estoppel. A predecessor had intended to grant a sub-lease to the defendant, who had arranged for his company JAD Ltd to execute major works on the strength of that promise. JAD was given permission to store items there, but … Continue reading Lloyd and others v Dugdale and Another: CA 21 Nov 2001
The claimant had an equitable charge over the property, and sought a possession order after failures to keep up repayments. The order was sought under the Act, and the claimants asserted that the conditions for the grant of possession were unchanged. Held: Parliament had clearly intended a change. The interests of a chargee ranked alongside … Continue reading Mortgage Corporation Ltd v Shaire and Another: ChD 25 Feb 2000
Land was transferred from son to his father with no consideration expressed. The father died and the son claimed that the absence of consideration meant that the house was to be held upon trust for the donor and donee as beneficial joint tenants in equal shares, and that accordingly upon the death of the father … Continue reading Lohia and Another v Lohia: ChD 7 Sep 2000
The landlord’s agents wrote to the proposed tenant offering a quarterly tenancy of the premises. The tenancy was to commence at a future date. The defendant endorsed the letter and returned it to say he would abide by the terms, and he was allowed into possession. He ceased to pay rent, and eventually came to … Continue reading Long v Tower Hamlets London Borough Council: ChD 29 Mar 1996
The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is exercised, the vendor and purchaser come under obligations to perform as … Continue reading Spiro v Glencrown Properties Ltd and Another: ChD 1991
Court will not allow order for sale of mortgaged property instead of repossession where very substantial expected shortfall. Citations: Gazette 04-Feb-1998 Statutes: Law of Property Act 1925 91 Jurisdiction: England and Wales Land Updated: 02 June 2022; Ref: scu.84634
The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for the deposit. After that transfer the claimant issued a notice to … Continue reading Omar v El-Wakil: CA 11 Jul 2001
A covenant on the sale of land for a public house provided that the vendor should not permit the building of licensed premises within half a mile. Held: The covenant operated personally only. The covenants which might be implied by the section to bind successors in title also, could not be implied where the commercial … Continue reading Morrells of Oxford Ltd v Oxford United Football Club Ltd and Others: CA 21 Jul 2000
Land was sold by the authority for a public house, and the authority covenanted not to permit sales of alcohol within a half mile. They later sold land for a football stadium within that area and from where alcohol would be sold. The covenant was held to be limited to the acts of the council, … Continue reading Morrells of Oxford Ltd v Oxford United Football Club and Others: ChD 22 Jun 2000
F granted T a lease reserving the right to deal with all rights in the property as F wanted. T used the back court and gate for business deliveries but then F granted the freehold to the plaintiff, who in turn denied all right to use the back court or gate as T had been … Continue reading Green v Ashco Horticulturist Ltd: 1966
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank claimed the money had been received on constructive trust. Held: The court confirmed … Continue reading Buhr v Barclays Bank plc: CA 26 Jan 2001
RESTRICTIVE COVENANTS – modification – additional house – whether covenants secure practical benefits of substantial value or advantage – loss of open aspect – loss of light – overbearing development – diminished outlook – disturbance – reduction in open market value of objectors’ houses – s84(1)(aa) Law of property Act 1925 – application refused Citations: … Continue reading Fogg, Re The Cobbles: UTLC 17 Apr 2018
A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. Citations: Gazette 07-May-1998, [1998] EWCA Civ 746 Statutes: Law of Property Act 1925 62 Jurisdiction: England and Wales Citing: See Also … Continue reading Hillman and Hillman v Rogers and Rogers: CA 30 Apr 1998
RESTRICTIVE COVENANT – discharge or modification – leasehold flat in block of 31 flats – covenants against subletting and restricting user to lessee and his family – application refused – Law of Property Act 1925 s 84(1)(aa) Citations: [2012] UKUT 125 (LC) Links: Bailii Jurisdiction: England and Wales Land Updated: 28 May 2022; Ref: scu.462567
RESTRICTIVE COVENANT – discharge – modification – covenants restricting residential redevelopment of dwellings and outbuildings forming part of grounds of listed house – benefit personal to covenantee and his family – sale of majority of benefited land to third party – whether covenants obsolete in respect of retained land under ground (a) – grounds (aa) … Continue reading Coombes, Re: Brainshaugh House: UTLC 12 Jun 2012
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not ‘as of right’ because a revocable deed by the landowner’s predecessor … Continue reading Regina v Secretary of State for Environment ex parte Billson: Admn 16 Feb 1998
UTLC RESTRICTIVE COVENANT – modification – dwellinghouse – proposal to extend well in front of building line – application refused – Law of Property Act 1925 s84(1)(a), (aa), (b) and c) Citations: [2012] UKUT 6 (LC) Links: Bailii Statutes: Law of Property Act 1925 8491)(a) Jurisdiction: England and Wales Land Updated: 26 May 2022; Ref: … Continue reading Coldman, Re 133 Richmond Road: UTLC 20 Feb 2012
RESTRICTIVE COVENANT – discharge – modification – proposed development of 10 flats to replace single house – whether covenants obsolete – changes to the character of the neighbourhood – whether similar covenants elsewhere on estate no longer enforceable – thin end of the wedge argument – reasonable user – whether public interest in the development … Continue reading King, Re 64 Buxton Road: UTLC 6 Feb 2012
RESTRICTIVE COVENANT – modification – leasehold interest – holiday chalet park – restriction in leases of chalets – use restricted to 10 months of year – chalet lessees seeking modification to permit 12-month use – lessors objecting – application refused – Law of Property Act 1925 s 84(1)(a), (aa) and (c) Citations: [2011] UKUT 346 … Continue reading Phillips and Others, Re: Holiday Chalets At Point Curlew: UTLC 5 Sep 2011
UTLC RESTRICTIVE COVENANTS – modification – covenant restricting development to one dwelling per plot – building scheme – proposal to erect two additional dwellinghouses within grounds of existing property – whether restrictions obsolete – whether practical benefits of substantial value or advantage secured by the restrictions – whether proposal would cause injury – application granted … Continue reading Cain, Re Waverley Lodge: UTLC 24 Nov 2009
UTLC RESTRICTIVE COVENANTS – modification – covenant restricting development to one dwelling per plot – building scheme – proposal to erect two additional dwellinghouses upon part of the rear gardens of 3 properties – whether practical benefits of substantial value or advantage secured by the restrictions – application refused – Law of Property Act 1925, … Continue reading GR and AL Developments Ltd, Re: UTLC 20 Nov 2009
UTLC RESTRICTIVE COVENANT – modification – no objections – restriction prohibiting alterations etc without vendor’s approval of plans – whether obsolete – modification sought prohibiting alterations etc not in keeping with neighbourhood – held inappropriate to impose restriction that would present problems with implementation – application refused – Law of Property Act 1925 s 84(1) … Continue reading Flowers, Re 30 Burges Road: UTLC 2 Feb 2010
UTLC RESTRICTIVE COVENANT – entitlement to benefit – whether covenant annexed to land – whether land capable of being benefited – whether original covenantee entitled to be heard by virtue of contractual benefit only – admission as objectors refused Citations: [2009] UKUT 182 (LC), [2010] 4 EG 114 Links: Bailii Statutes: Law of Property Act … Continue reading Hutchinson, Re 1 Captains Gorse: UTLC 21 Sep 2009
UTLC RESTRICTIVE COVENANTS – discharge or modification – building not to be used for any purpose other than maternal clinic – whether obsolete – whether injury caused to objector – application granted – Law of Property Act 1925 s84(1)(a) and (c). Citations: [2009] UKUT 114 (LC) Links: Bailii Statutes: Law of Property Act 1925 84 … Continue reading Abertawe Bro Morgannwg NHS University Trust v Coedffranc Community Council: UTLC 23 Jun 2009
UTLC RESTRICTIVE COVENANT – modification – unopposed application – restriction limiting plot to one dwellinghouse – modified so as to allow for the demolition of the existing property and its replacement with three detached houses and garages – grounds (a), (aa) and (c). Citations: [2009] UKUT 115 (LC) Links: Bailii Statutes: Law of Property Act … Continue reading Hayes, Re 197 Long Lane: UTLC 29 Jun 2009
UTLC Restrictive Covenant – Discharge – residential garage converted and used as a dog-grooming parlour – restrictions preventing business use and advertising – whether restrictions obsolete – whether any injury to beneficiaries – Tribunal’s discretion to order modification with conditions – s84, Law of Property Act 1925 Citations: [2018] UKUT 21 (LC) Links: Bailii Statutes: … Continue reading Holden, Re Ash Lodge: UTLC 19 Jan 2018
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge. Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of an equitable mortgage by deposit of deeds had been … Continue reading United Bank of Kuwait Plc v Sahib and Others: CA 2 Feb 1996
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an order requiring to remove what had already been built. Held: The pavement … Continue reading Minor v Groves: CA 20 Nov 1997
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze a certain number of animals on the common. That … Continue reading Bettison and others v Langton and others: HL 17 May 2001
A non-party to a deed cannot take the benefit of a covenant even though he had been named as such in the deed. Citations: Times 13-Nov-1996 Statutes: Law of Property Act 1925 56 Land Updated: 17 May 2022; Ref: scu.77781
Land was sold. The parties disputed whether a greenhouse was included. Held: It was a large greenhouse consisting of a sectional frame bolted to a large concrete base. ‘Building’ was to be given the meaning ascribed by s62 of the 1925 Act. The greenhouse was not sufficiently affixed but rested by its own weight on … Continue reading Deen v Andrews: 1986
The court discussed the need for some system of acquisition of right by user. Lord Denning MR said: ‘the long user as of right should by our law be given a lawful origin if that can be done.’ Stamp LJ said: ‘if long enjoyment of a right is shown, the court will strive to uphold … Continue reading Davis v Whitby: CA 1974
The wife was co-owner of the family home. Her husband owed money to the bank. He separated from his wife and left the matrimonial home moving to another house owned by the wife. The bank obtained a charging order absolute against the husband’s interest in the matrimonial home and then sought an order under section … Continue reading Barclays Bank Plc v Hendricks and Another: ChD 3 Nov 1995
The plaintiff sought rectification of its lease. Held: The court ordered rectfication applying section 63(1): ‘I need not read any further. But [Counsel] submits, I think rightly so, that under that provision the transfer, which was a transfer of the freehold reversion, subject, of course, to the lease, from the original landlords to the present … Continue reading Boots the Chemist Ltd v Street: 1983
The fact that a way is not itself made up or identifiable on the ground may not be fatal to the establishment of an easement under Wheeldon v. Burrows or section 62 of the 1925 Act, if the ends of the way are apparent and it is clear that it was the intention of the … Continue reading Hansford v Jago: 1921
Mortgagee is entitled to relief against forfeiture retrospectively. Sub-tenants and mortgagees can also apply for relief under s 146(2). Citations: Gazette 11-May-1995, [1996] QB 231 Statutes: Law of Property Act 1925 146(2) Jurisdiction: England and Wales Landlord and Tenant Updated: 14 May 2022; Ref: scu.80364
If a notice of assignment of a debt describes the assignment by reference to a wrong date, the notice is invalid because it has described a non-existent document. Citations: [1956] 1 WLR 419 Statutes: Law of Property Act 1925 139 Cited by: Cited – Van Lynn Developments Ltd v Pelvis Construction Co Ltd 1969 A … Continue reading W F Harrison and Co v Burke: 1956
A mortgagee may under common law go into possession before the ink is dry on the mortgage unless there is something in the contract, express or by implication, whereby he has contracted himself out of that right. He has the right because he has a legal term of years in the property or its statutory … Continue reading Four-Maids Ltd v Dudley Marshall (Properties) Ltd: 1957
The marriage between the defendants had broken down, but the wife still visited the house regularly, staying and caring for the children when the husband was away. The house was held in his sole name. He charged it to the plaintiffs, who now sought possession. The wife asserted an equitable interest, as a person in … Continue reading Kingsnorth Finance Co Ltd v Tizard: ChD 1986
The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property. Held: Referring to the statement of principle in in re Mayo, described as ‘a simple uncomplicated case … Continue reading Jones v Challenger: CA 1960
In a contract the Defendants promised certain properties to whoever first arrived with the requisite draft contract and bankers drafts. The Plaintiffs did. Held: They failed in their claim. It involved a unilateral contract and the Defendants’ oral promises was expressly made subject to contract, but the Court decided the dispute by reference to the … Continue reading Daulia Ltd v Four Millbank Nominees Ltd: 1978
The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a fire and steps taken to extinguish it. The insurers began proceedings in Brazil … Continue reading Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’): CA 1997
The setting aside of the statutory power of a mortgagor in possession to grant a lease, by the mortgage itself did not create in the lender a duty of good faith properly to consider a request from the mortgagor for permission to let the property. It was wrong to attempt to import such a duty … Continue reading Kenneth Starling v Lloyds TSB Bank plc: CA 10 Nov 1999
The respondent was tenant of premises with exclusive access to an area of the roof which had been used by her for leisure purposes. The freeholder objected, and she claimed that the use was in the nature of an easement which had passed to her under the section when she took a transfer of the … Continue reading Hanina v Morland: CA 7 Dec 2000
A landlord could recover under the service charge the full cost of works of repair to the outside of premises even though part of the works had been undertaken by the tenant, for which breach a waiver had been given, and even though other tenants having carried out similar works had had an allowance given … Continue reading Broomleigh Housing Association Ltd v Hughes: ChD 26 Nov 1999
Rights of a first lender to grant tenancies must be respected, and override the rights of a second mortgagee to possession. A mortgagee in possession has full power to grant a tenancy. A mortgagee is not limited by the section. Citations: Times 27-May-1999 Statutes: Law of Property Act 1925 99 Jurisdiction: England and Wales Land … Continue reading Berkshire Capital Funding Ltd v Street et Al: CA 27 May 1999
The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price. Held: The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies J said: ‘With those observations in mind, it seems that … Continue reading Cole v Rose: 1978
The court declined to express a view on the use of section 49(2) to order the return of a deposit. Citations: [1944] 2 All ER 31 Statutes: Law of Property Act 1925 49(1) Cited by: Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008 Refusal to return Land Contract Deposit … Continue reading James Macara v Barclay: CA 1944
The landlord wanted to serve a section 146 notice for breach of repairing covennat. The lease had been assigned. Held: The person who had assigned was not entitled to receive a section 146 notice. Therefore the person on whom the notice should be served was the assignee. Judges: Pilcher J Citations: [1958] 1 WLR 611 … Continue reading Cusack-Smith v Gold: 1958
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of payment of the debts would cause any great hardship to any of the creditors. … Continue reading In re Holliday: CA 1981
A husband held the matrimonial home on trust for sale for himself and his wife in equal shares. The couple lived in the house. The husband and another man were in business with through a limited company, and guaranteed the its debts to the plaintiff, who obtained a default judgment against the husband under the … Continue reading Lloyds Bank plc v Byrne and Byrne: 1993
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 … Continue reading Clark v Chandler: CA 28 Jun 2002
The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs and surviving issue’. Held: The heirs were to be ascertained in … Continue reading In re Bourke’s Will Trusts: ChD 1980
The wife claimed that the husband had forged the mortgage document. The Society said that she had allowed them to believe that she had consented to the charge. Slade LJ set out the principle: ‘in a case where A, the holder of the legal estate in land, has executed a mortgage of the land in … Continue reading Skipton Building Society v Clayton: CA 1993
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2). Held: He was entitled to the repayment of the deposit on the first ground. The court went further to hold that, even if the purchaser had been at fault, section 49(2) … Continue reading Schindler v Pigault: 1975
The plaintiffs contracted to buy a plot of registered land with a house to be built on it. The developer had charged the estate as a whole to a bank to secure the development finance. The developer became insolvent and the bank sold the estate as mortgagee to the first defendant ‘subject to and with … Continue reading Lyus v Prowsa Developments Ltd: ChD 1982
The court considered an assertion that a right of necessity was implied into a deed. Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the … Continue reading Nickerson v Barraclough (1): ChD 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported compliance with the right of pre-emption. A year later the plaintiff purported … Continue reading Pritchard v Briggs: CA 1980
The court held that under a mortgage by deposit under seal, a true equitable mortgage – that the expression ‘the mortgaged property’ in section 101 meant the property over which the mortgage deed purported to extend and was not limited to an equitable interest in that property. Judges: Wilberforce J Citations: [1964] Ch 483 Statutes: … Continue reading in Re White Rose Cottage: ChD 1964
An equitable charge of a lease has standing to apply to court for relief from forfeiture for non-payment of rent, where the tenant did not himself seek relief, but only indirectly on the basis that the lessee and chargor has a duty to take reasonable steps to preserve the charge’s security. The tenant stands in … Continue reading Bland v Ingrams Estates Ltd and Others (1): CA 18 Jan 2001
The defendants had taken an assignment of the reversion of a flat held on a long lease. The assignors had gone into liquidation when in prolonged breach of the lessor’s repairing covenant. The lessee asserted that the effect of s.142 on an assignment was to transfer the burden of past as well as future breaches … Continue reading Duncliffe v Caefelin Properties Ltd: ChD 1989
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from the original developer, … Continue reading Dolphin Quays Developments Ltd v Mills and others: CA 17 May 2007
The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement and forfeited the deposits. The purchaser sought repayment of the deposits under … Continue reading Tennaro Ltd v Majorarch: 2003
The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had suggested that the covenants may be modified by the Lands Tribunal, but he made no application. Held: The area was … Continue reading Chatsworth Estates Company v Fewell: 1931
Mr Nadler was a lessee of property, part of which he sublet to the plaintiff. In 1931 he made a declaration of trust, under which he declared that the property was held in trust for his company, Joseph Nadler Ltd. Shortly after the company purported to distrain for arrears of rent under the subtenancy. The … Continue reading Schalit v Joseph Nadler Ltd: CA 1933
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty. Held: The claim was rejected. The daughters were not parties to the agreement, and had no right to sue for their annuities. Whether they received them or not depended on … Continue reading In re Miller’s Agreement, Uniacke v Attorney-General: ChD 1947
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify. Judges: Mr Clarke Citations: [1995] 70 P and CR 569 Statutes: Law of Property Act 1925 84 Jurisdiction: England and Wales Citing: Applied – Re Tarhale Limited LT 1990 Two … Continue reading Re Bromor Properties Limited: LT 1995
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy vehicles, apart from those required for a particular development. The objectors … Continue reading Re Tarhale Limited: LT 1990
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme. Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the facts and merits of the particular case, and the Tribunal is unable to bind … Continue reading Re Snaith and Dolding’s Application: LT 1995
In the case of an application to remove or vary covenants for a property within a building scheme, there is ‘a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are satisfied.’ The court rejected a suggestion that ‘practical benefits’ were … Continue reading Gilbert v Spoor: CA 1983
The court considered the ability of a tenant to obtain relief from forfeiture for illegal or immoral use where the tenant was not aware of the breach by his sub-tenant until he received the section 146 notice. Where the tenant took prompt action to limit or prevent damage to the landlord’s reputation, relief from forfeiture … Continue reading Glass v Kencakes: 1966
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the National Conditions of Sale, and referring as it did to the contract … Continue reading Dimsdale Developments (South East) Ltd v De Haan: 1983
The court discussed the doctrine of privity of contract. Lord Denning MR said: ‘It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that the common law in its … Continue reading Drive Yourself Hire Co (London) Ltd v Strutt: CA 1954
A covenant required the purchasers to erect and maintain a chain link fence. Held: The covenant was a positive personal covenant between the original vendor and the original purchaser and was not a restrictive covenant. The Lands Tribunal declined jurisdiction to vary it under the section. Citations: (1962) 14 PLCR 56 Statutes: Law of Property … Continue reading Blythe Corporation’s Application: 1962
Consideration is not required to support a statutory assignment of a debt under section 136 of the 1925 Act and the lack of consideration does not need to be made good by deed. Citations: [1942] 2 KB 1 Statutes: Law of Property Act 1925 8136 Cited by: Cited – Firstdale Ltd v Quinton ComC 5-Aug-2004 … Continue reading Holt v Heatherfield Trust: 1942
In a shopping centre, a tenant and its customers had acquired the right under s62 of the 1925 Act to use the concourse. The tenant was therefore entitled to an injunction to prevent the landlord further developing the concourse in such a way as to infringe those rights. Citations: [1993] EGCS 120 Statutes: Landlord and … Continue reading Pretoria Warehousing Co Ltd v Shelton: 1993
A husband resisted his former wife’s claim under the section against his brother, her brother-in-law. He asserted, with a view to deceiving both his wife and the Court, that his brother, who held the fee of a house, did not hold any share beneficially for the husband but held entirely for himself, the brother. That … Continue reading Singh v Singh: 1985
The court was asked as to the position resulting from the assignment of a contract including an arbitration clause: ‘Where the assignment is the assignment of the cause of action, it will, in the absence of some agreement to the contrary include as stated in s136 all the remedies in respect of that cause of … Continue reading The Jordan Nicholev: 1990
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal offence under section 193 of the Law of Property Act … Continue reading Bakewell Management Limited v Brandwood and others: HL 1 Apr 2004
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 … Continue reading United Bank of Kuwait Plc v Sahib and Others: ChD 24 Jun 1994
