A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported compliance with the right of pre-emption. A year later the plaintiff purported to exercise his option and claimed to be entitled to the retained land in priority to the defendants. Walton J dismissed the claim.
Held: The appeal succeeded. The grant of the right of pre-emption did not confer an interest in land and the grant of the option did not trigger the right of pre-emption. The grantee of the right of pre-emption had a right to call for a conveyance of the land if the conditions on which the right is exercisable are fulfilled. Section 186 appeared to have been drafted under a misconception of the law.
Goff LJ said: A party does not avoid liability simply because through ignorance of the law he does not realise that his conduct is tortious. Goff LJ drew no distinction between the criminal and the civil law, and applied the criminal test in the civil context. Stephenson LJ expressly agreed with the judgment of Goff LJ.
Templeman LJ said: ‘Thus the relationship of vendor and purchaser could not be established unless the [vendors] chose to offer the retained lands to the holder of the right of pre-emption or, in breach of covenant, contracted to sell the retained lands to a third party without first offering the lands to the option-holder… If and when these conditions were fulfilled, the holder of the right of pre-emption would be entitled to buy and therefore entitled to an equitable interest.’ Stephenson LJ: ‘…what is granted is a right of pre-emption, [and] the true construction of the grant is only properly called an option when the will of the grantor turns it into an option by deciding to sell and thereby binding the grantor to offer it for sale to the grantee. That it thereby becomes an interest in land is a change in the nature of the right…to which I see no insuperable objection in logic or in principle.’
Goff LJ, Templeman LJ, Stephenson LJ
 CLY 1563,  Ch 338
England and Wales
Cited – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .
Cited – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Distinguished – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – Bettison and others v Langton and others HL 17-May-2001
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 . .
Cited – Tiffany Investments Ltd and Another v Bircham and Co Nominees (No 2) Limited and others CA 4-Dec-2003
The tenancy was a long lease at a low rent under the 1954 Act, and so had continuing protection under the 1977 Act whilst occupied by the original tenant. The lease was assigned and registered. It had been conditional upon an application to purchase . .
Cited – Bircham and Co, Nominees; Limited and Another v Worrell Holdings Ltd CA 22-May-2001
Whether an agreement is enforceable for the sale of the remainder of the term of a lease following the exercise (or purported exercise) of rights of pre-emption . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Taylor v Couch ChD 1-Mar-2012
The case raised the question of law involving the application of the rule against perpetuities to what, on the claimant’s case, is a right of pre-emption created before the coming into force in 2010 of the Perpetuities and Accumulations Act 2009.’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.183367