Palliser v Revenue and Customs Re Wedderburn Road: UTLC 16 Mar 2018

Inheritance Tax – valuation under s160 Inheritance Tax Act 1984 – maisonette – whether hope value for extension to be taken into account – analysis of comparables – value of appellant’s undivided share determined at pounds 1,603,930 – appeal allowed in part

Citations:

[2018] UKUT 71 (LC)

Links:

Bailii

Statutes:

Inheritance Tax Act 1984 160

Jurisdiction:

England and Wales

Land, Inheritance Tax

Updated: 23 May 2022; Ref: scu.606889

In Re Section 14, (D) of The Land Compensation Act 1961: UTLC 8 Mar 2018

COMPENSATION – compulsory purchase – preliminary issue – ransom value – scheme highway – whether section 14(5)(d) of the Land Compensation Act 1961 engaged so as to prevent the assumption of planning permission – determined not so engaged

Citations:

[2018] UKUT 62 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961

Jurisdiction:

England and Wales

Land

Updated: 23 May 2022; Ref: scu.606887

Johnston v O’Neill: HL 14 Jul 1911

An exclusive right was claimed to the eel-fishing over the whole of Lough Neagh, a large navigable non-tidal inland lough in Ireland by the holders of a long lease, who were in right of a title to the fishings conferred by the Crown in 1661. The title of the Crown had been previously affirmed in certain inquisitions. The claimants and their authors produced some leases of the fishings in the lough, and proved occasional payments made in respect thereof at various dates since the date of the Crown grant. It was proved in defence, and not disputed, that the public had for centuries fished for eels habitually and continuously in the lough as of right. Judgment in favour of the lessees was affirmed by the Court of Appeal in Ireland (Sir S. Walker, L.C., Fitzgibbon and Holmes, L.JJ). The defendants appealed.
Held: Held that the public cannot prescribe a right of fishing in inland non-tidal waters, and ( diss. the Lord Chancellor, Lords Shaw and Robson) that the claimants had sufficiently established their title to the exclusive enjoyment of the fishings notwithstanding the continuous practice of fishing by the public.
Per Lord Macnaghten-‘The Crown is not of common right entitled to the soil or waters of an inland non-tidal lake. No right can exist in the public to fish in the waters of an inland non-tidal lake.’
Per Lord Dunedin-‘The public cannot have a right to the fishing in question. The Crown may have had a right to it when it granted the patent. The only competitor to the Crown and its patentee must be some other private owner or owners, corporation or quasi-corporation.’

Judges:

Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Macnaghten, Dunedin, Shaw, and Robson

Citations:

[1911] UKHL 638

Links:

Bailii

Jurisdiction:

England and Wales

Land, Agriculture

Updated: 23 May 2022; Ref: scu.619210

Greene v Chelsea Borough Council: CA 1954

Lord Denning MR said: ‘Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger’.

Judges:

Lord Denning MR

Citations:

[1954] 2 QBD 127

Cited by:

CitedRoles v Nathan CA 15-May-1963
Two chimney sweeps were overcome by fumes, and died in the basement of the Manchester Assembly Rooms. Whilst occupied working in flues (against advice), a boiler had been lit.
Held: (Majority – Pearson LJ dissenting) The land-owner’s appeal . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Land, Negligence

Updated: 20 May 2022; Ref: scu.568158

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; Ref: scu.89148

Solartrack Plc v London Development Agency: UTLC 26 Jul 2012

COMPENSATION – compulsory purchase – disturbance – claim for temporary loss of profits, extinguishment of goodwill and consequential losses – whether compensation to be based on extinguishment or cost of notional relocation – whether claimant company would have been profitable in absence of CPO and if so to what extent – compensation awarded pounds 72,500.

Citations:

[2012] UKUT 158 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 20 May 2022; Ref: scu.463434

Coudrier and Others v Secretary of State for Transport: UTLC 1 Apr 2010

COMPENSATION – compulsory purchase – tubes of subsoil acquired for Channel Tunnel Rail Link – determination of compensation where no communication possible with claimants or where claimants have agreed compensation but not completed conveyance – held nominal amount of pounds 50 payable as no market for acquired property

Citations:

[2010] UKUT 92 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 20 May 2022; Ref: scu.415013

Fisher v Walker, Cooper v Walker: 16 Jun 1862

The defendant occupied a house adjoining to a public street, with a cellar belonging to it, which cellar had existed before the defendant had anything in the house, The mouth of this cellar opened into the footway of the street by a trap door. During the day this trap door was open, but at night it was closed by a flap, which slightly projected above the footway, and it had so projected as long as living memory went back, The plaintiff, coming along the footway at night, stumbled over this flap, fell, and sustained injury, for which he brought an action.
Held: that the jury ought to draw the conclusion that the cellar flap had existed as long as the street, and that the dedication of the way to the public was with the cellar flap in it, and subject to its being continued there; and, therefore, that the defendant was not liable, as the maintenance of such an ancient cellar flap was not unlawful.

Citations:

[1862] EngR 814 (A), (1862) 2 B and S 770

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Personal Injury

Updated: 20 May 2022; Ref: scu.286980

Peskett v Portsmouth City Council: CA 25 Jun 2002

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.

Judges:

Lords Justice Pill and Potter

Citations:

Gazette 04-Jul-2002, [2002] EWCA Civ 1175

Links:

Bailii

Statutes:

Occupiers Liabilities Acts 1957, Occupiers Liabilities Acts 1984

Jurisdiction:

England and Wales

Land, Personal Injury

Updated: 19 May 2022; Ref: scu.217313

Regina v Lands Tribunal, Ex Parte Jafton Properties Ltd: COL 31 Jul 2000

After a tribunal application, the applicant submitted his costs for taxation. After the hearing there was further correspondence about the decision, resulting in the applicant formally objecting to the taxation. He suggested that the correspondence after the award meant that taxation had not been concluded. It was held that he was out of time. The taxation award had all the elements necessary to make it final, and the President’s refusal of extension of time was not irrational or unreasonable. The reasons were succinct, but correct.

Judges:

Langley J

Citations:

Gazette 31-Aug-2000, [2000] EWHC Admin 384

Links:

Bailii

Statutes:

Lands Tribunal Rules 1996 (1996 No 1022) 52

Costs, Administrative, Land

Updated: 19 May 2022; Ref: scu.87117

Re Palmer (A Deceased Debtor), Palmer v Palmer: CA 6 Apr 1994

Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. The wife argued that by the doctrine of survivorship the house was already hers. The administrator said that the effect of the order was backdated so as to have severed the joint tenancy before the death, and that therefore the deceased’s interest passed into the administration.
Held: The appeal was allowed. The rule that a judicial act takes effect from the first moment of the day on which it is made is not universal. ‘the time has come to say the fiction should have no place when the true facts are known, at least in cases where the court’s jurisdiction is concerned. . . The respondent’s submission in the present case is that the insolvency administration order which was made on the 17th August 1991 is deemed by paragraph 12 of the 1986 Order (Sch.1 Part II) to take effect for the purposes of the vesting of property in the trustee as if it had been made on 22 November 1990, the date of Mr Palmer’s death. To this statutory fiction, it is submitted, must be added the common law fiction that the Order was made at the earliest moment of that day, and therefore whilst Mr Palmer was alive.’ The submission failed.

Judges:

Balcomve LJ, Evans LJ, Roch LJ

Citations:

Independent 06-Apr-1994, [1994] EWCA Civ 15

Links:

Bailii

Statutes:

Insolvency Act 1986 421

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .
CitedWilliams v Hensman 10-Jun-1861
A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy . .
CitedBurgess v Rawnsley CA 15-Apr-1975
. .
CitedWright v Mills 1859
A judgment was signed when the Court’s offices opened at 11 am but the defendant had died at 9.30 the same morning. The Court held that the judgment was regular, applying the rule that judicial acts, being acts of the Crown, have precedence over . .
CitedEdwards v Regina CExc 1854
The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court’s judgment added that even if the . .
CitedShelley’s case; Wolfe v Shelley 1581
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were . .
CitedClarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
CitedClarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
CitedRe Seaford Dec’d CA 1968
A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made. . .
CitedTabernacle Permanent Building Society v Knight 1892
The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 19 May 2022; Ref: scu.85849

Parochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another: ChD 7 Feb 2000

A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when purchasing land which had been part of the rectorship, and whether or not he was a lay or spiritual rector. Such an imposition may well not be capable of being set aside under the new Act when it comes into force. The law relating to chancel repairs did not involve a deprivation of possessions. The liability to repair the chancel is one of the incidents of ownership of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is an unusual incident not amounting to a charge on the land, not limited to the value of the land and in imposing a personal liability on the owner of the land, but it cannot be distinguished from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title.

Judges:

Ferris J

Citations:

Gazette 28-Apr-2000, Times 30-Mar-2000

Statutes:

Chancel Repairs Act 1932 5, Human Rights Act 1998 5

Jurisdiction:

England and Wales

Citing:

CitedAttorney-General v Dean and Chapter of Ripon Cathedral ChD 1945
Uthwatt J said: ‘The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts’ . .

Cited by:

Appeal fromWallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
At first instanceParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Ecclesiastical

Updated: 19 May 2022; Ref: scu.84588

Mortgage Corporation Ltd v Shaire and Another: ChD 25 Feb 2000

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 those of, for example, children living in the house. This might act to the detriment of banks, and the old authorities, whilst not entirely irrelevant, should be viewed with caution. Where the parties have reached a consensus on the beneficial interests in the property, the court will give effect to it, unless there is very good reason for not doing so, such as a subsequent renegotiation.

Judges:

Neuberger J

Citations:

Gazette 16-Mar-2000, Times 21-Mar-2000, [2000] 1 FLR 973, [2001] Ch 743, [2000] EWHC Ch 452

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14 15, Law of Property Act 1925 30

Cited by:

CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Land, Banking, Trusts

Updated: 19 May 2022; Ref: scu.83867

Green and Another v Wheatley: CA 19 May 1999

Where a garage had been built upon land, and allowed to stay there for over twenty years, title had been acquired by adverse possession, and a right of way which might previously have existed over the land, had also been lost.

Judges:

Stuart Smith LJ, Laws LJ, Jonathan Parker LJ

Citations:

Gazette 03-Jun-1999, [1999] EWCA Civ 1442

Jurisdiction:

England and Wales

Land, Limitation

Updated: 19 May 2022; Ref: scu.81003

Graham v Pitkin: PC 9 Mar 1992

A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because the purchaser could always have decided that the mortgage was satisfactory and proceeded.

Judges:

Lord Templeman

Citations:

Gazette 29-Apr-1992, [1992] 1 WLR 403, [1992] UKPC 8

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

CitedLee-Parker v Izzett (1) ChD 1971
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 May 2022; Ref: scu.80964

Director of Buildings and Lands v Shun Fung Ironworks Ltd: PC 20 Feb 1995

Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: ‘In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today’s currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow’s depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require.’

Judges:

Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 27-Feb-1995, [1995] 2 AC 111

Links:

PC

Statutes:

Compulsory Purchase Act 1965 11(1)

Cited by:

CitedHalstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
CitedMohammed Aslam v South Bedfordshire District Council CA 21-Dec-2000
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
CitedFaraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
CitedRyde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
CitedMoto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth, Damages

Updated: 19 May 2022; Ref: scu.79977

Cresstock Investments Ltd v The Commons Commissioner: CA 10 Jul 1992

The Commons Commissioner had included a wood within the commons. The landowner appealed.
Held: A 1933 conveyance as had referred to the land as ‘several pieces or parcels of land adjoining and enjoyed with’ the house, and it had been enjoyed with the house for many years. The wooded garden should excluded from the common. The words ‘land ancillary to’ a dwelling house should be read to include a garden, and need not be construed tightly so as to include only agricultural or cultivated land.

Citations:

Gazette 16-Sep-1992, [1992] 1 WLR 1088, [1993] 1 All ER 213

Statutes:

Common Land (Rectification of Registers) Act 1989 1(2) 1(3)

Cited by:

CitedRe Land at Freshfields ChD 27-Jan-1993
Where land had been registered by the Commons Commissioner as common land by virtue of a mistake, the Act provided no mechanism for the correction of that mistake. In this case it was not established that the land comprised fields which were not as . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 May 2022; Ref: scu.79624

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

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 a certain number of animals on the common. That right was no longer defined by reference to the dominant tenement, and so was a separate right which could be sold and conveyed on to a third party as an asset separated from the land.

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Scott of Foscote

Citations:

Times 30-May-2001, Gazette 21-Jun-2001, [2001] UKHL 24, [2001] 3 All ER 417, [2001] 2 WLR 1605

Links:

Bailii, House of Lords

Statutes:

Commons Registration Act 1965 15, Law of Property Act 1925 187

Citing:

Appeal fromBettison and Another v Penton and Another CA 22-Jan-1998
A common right of grazing which was quantified but not related to the ability of the land to sustain it was capable of existing in gross, and was therefore severable entirely from the land to which it related. The severance was no necessary . .
CitedWhite v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
CitedDrury v Kent 1603
‘he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over.’ . .
CitedDaniel v Hanslip 1672
‘if a man hath common appurtenant to a messuage and land for certain number of beasts, he may alien the same; aliter if it be common for all his beasts levant and couchant upon the land, he cannot by his alienation sever that from the land.’ It was . .
CitedRichards v Squibb 1698
A right to depasture a fixed number of beasts differs from a right for beasts levant and couchant. It is not confined to enjoyment by beasts levant and couchant on the dominant land and may be enjoyed by beasts that do not come from the tenement to . .
CitedCarr v Lambert 1866
Levancy and couchancy is a ‘measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits’. . .
CitedBaylis v Tyssen-Amhurst 1877
In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was . .
CitedLord Chesterfield v Harris CA 27-Jun-1908
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that . .
CitedLord Chesterfield v Harris HL 17-Jul-1911
The House considered the nature and ownership of fishing rights on the River Wye. Freeholders in adjoining parishes had been fishing a non-tidal portion of the river for centuries, not by stealth or indulgence, but openly, continuously, as of right . .
CitedPritchard v Briggs CA 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 . .
CitedKirkness 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 by:

CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedPolo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.78374

Batchelor v Marlow and Another: ChD 25 May 2000

The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate the acquisition by prescription, since the use did not become unlawful until a planning enforcement notice had been served.

Citations:

Times 07-Jun-2000, Gazette 25-May-2000, Gazette 08-Jun-2000, (2001) 82 P and CR 36

Cited by:

CitedP and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Appeal fromBatchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Lists of cited by and citing cases may be incomplete.

Land, Road Traffic, Limitation

Updated: 18 May 2022; Ref: scu.78277

Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD 6 Sep 2000

Where there was a gift of land on charitable trusts, but where the gift was first expressed to be unlimited in time, but later in the deed provided powers for revocation, and conditions for defeasance, it must remain a matter of construction of the particular deed to decide whether the gift was in perpetuity. In the current cases the reversionary provisions were void for remoteness, and the trustees had acquire a possessory title for charity on the trusts of the original deeds.

Citations:

Times 06-Sep-2000, Gazette 05-Oct-2000

Land, Charity, Trusts

Updated: 18 May 2022; Ref: scu.78288

Battersea Freehold and Leasehold Property Company Ltd v Wandsworth London Borough Council: ChD 2 Mar 2001

The tenant of the applicant had occupied land adjacent to the tenanted land and belonging to the council respondent for more than 12 years. The applicant sought to assert that he had acquired possessory title. The tenant had however shared the keys when requested.
Held: The claimants appeal failed. Even if the tenant’s use of the land had not been permissive, in order to establish adverse possession the claimant had to show that its tenant had intended to exclude the whole world at large from the disputed land; The sharing of the keys by the tenant indicated that he had not viewed himself as asserting exclusive possession, by excluding the world at large.

Judges:

Rimer J

Citations:

Gazette 17-May-2001

Land, Limitation

Updated: 18 May 2022; Ref: scu.78291

Banque National De Paris Plc v Montman Ltd and others: ChD 2 Sep 1999

A person claiming to be ‘interested’ in property had to demonstrate either some proprietary interest or similar or that he was directly affected by a charging order. An unsecured creditor could not take priority over the liquidator in seeking to overturn a charging order predating the winding up.

Citations:

Times 02-Sep-1999

Statutes:

Charging Orders Act 1979

Land

Updated: 18 May 2022; Ref: scu.78179

Anderson v Dickie: SCS 26 May 1914

A disposition of lands by X contained a declaration that it should not be lawful for A (the disponee) or his foresaids to sell or feu part of the lands disponed except under certain specified conditions as to the number and value of the dwelling-houses to be erected thereon, ‘which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of’ B (another disponee of X) and his foresaids in all time coming.
Held that the declaration merely placed upon A and his heirs a personal prohibition against selling or feuing except under the conditions specified, and did not constitute the restriction a real burden on the lands, and that, accordingly, a singular successor of B was not entitled to interdict a singular successor of A from contravening the restriction.

Citations:

[1914] SLR 614

Jurisdiction:

Scotland

Cited by:

Appeal fromAnderson v Dickie HL 22-Apr-1915
S. feued a piece of his ground to M., the feucontract containing this clause-‘Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.621101

Kirby v Hunslet Union Assessment Committee: HL 1906

The Act provided that the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alon
Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory’s assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it.
Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory’s assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it.
Lord Halsbury said that he would: ‘decline myself to enter into what I may call the original equities which might have guided this matter. It is, enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely’. that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may hot be attached to the freehold.’

Judges:

Lord Macnaghten,Lord Halsbury

Citations:

[1906] AC 43

Statutes:

Parochial Assessment Act 1836

Jurisdiction:

England and Wales

Cited by:

Much CriticisedIceland Foods Ltd v Berry (Valuation Officer) SC 7-Mar-2018
Air System plant excluded from Rating value
The court was asked whether the services provided by a specialised air handling system, used in connection with refrigerated merchandise in the appellant’s retail store, are ‘manufacturing operations or trade processes’ for rating purposes.
CitedIceland Foods Ltd v Berry (Valuation Officer) CA 23-Nov-2016
The court was asked whether the air handling system used by Iceland Foods Limited in its retail store at Liverpool was plant or machinery ‘used or intended to be used in connection with services mainly or exclusively as part of manufacturing . .
Lists of cited by and citing cases may be incomplete.

Land, Rating

Updated: 18 May 2022; Ref: scu.605769

Potters v Loppert: ChD 1973

The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors. A pre-contract deposit paid by a prospective purchaser was received subject to an obligation to repay the money on request unless and until a contract was concluded. Material considerations included that until the event was known the recipient was to keep the money in his own hands, but if the recipient employed the money he was entitled to any profit and answerable for any loss.
Sir John Pennycuick V-C said: ‘I propose, in the first place, to consider the law in relation to contract deposits. Looking at the position apart from authority, one might perhaps at first sight rather expect that where any property is placed in medio in the hands of a third party to await an event as between two other parties the third party receives that property as trustee, and that the property and the investments for the time being representing it represent the trust estate. Where the property is something other than money – for example, an investment – that must, in the nature of things, almost certainly be the position. But where the property is money – that is, cash or a cheque resulting in a bank credit – this is by no means necessarily so. Certainly the money may be paid to the third party as trustee, but equally it may be paid to him as principal upon a contractual or quasi-contractual obligation to pay the like sum to one or other of the parties according to the event. It must depend upon the intention of the parties, to be derived from all the circumstances, including any written documents, in which capacity the third party receives the money.’

Judges:

Sir John Pennycuick V-C

Citations:

[1973] Ch 399, [1973] 1 All ER 658

Cited by:

CitedRockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
CitedManzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.550154

Toplis v Green: CA 14 Feb 1992

Butler-Sloss LJ said, as to the construction of a conveyance with a plan: ‘In taking the objective approach, one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?’

Judges:

Butler-Sloss LJ

Citations:

Unreported 14 February 1992

Land

Updated: 18 May 2022; Ref: scu.515259

Case XXV 7 Co 40 A B, Bedel’s Case Uses, Covenants, Inrollment: 1220

A father covenants by indenture, in consideration of continuing the land in his blood, and of natural affection, to stand seized to the use of himself for life, remainder to his wife for life, remainder to his second son in tail : resolved that the use to the wife is well raised ; for the naming of her, being his wife, is sufficient: so of any cousin ; for it is a consideration of money paid by the wife or son, the indenture ought to be inrolled.
Adjudged and affirmed in error.
If the consideration be of blood and money paid ; where there is kindred; an use will rise upon a covenant by indenture without inrollment : for the words of 27 H. 8, cap. 16, for inrollments, are, where a freehold or inheritance passes by bargain and state only : not where blood is joined.

Citations:

[1220] EngR 599, (1220-1623) Jenk 289, (1220) 145 ER 209 (B)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461511

Case VI 2 H 8 9 Co 118 H Dally, 25, Pl 8 11 Co 59 A B Keyleway, 159, 204 Forcible Entry, Restitution Commissioners De Oyer And Terminer, Bank Le Roy: 1220

Commissioners of oyer and terminer have no power to exclude upon the statute of forcible entry : for the statute of 8 H 6, cap. 3, which provides an enquiry and restitutiori in this case, appropriates it to the justices of peace : but the judges of the King’s Bench are wittin the statute ; for the King sits there, and where the King sits est plenitudo potestatis. Proprietates verborum tuendae sunt.

Citations:

[1220] EngR 269, (1220-1623) Jenk 197, (1220) 145 ER 132 (B)

Links:

Commonlii

Land, Constitutional

Updated: 18 May 2022; Ref: scu.461181

2 Jac Cr 40, Earl of Rutland’s Case 1 Co 76 A B Curia Wardor’, Surrender, Tail, Fines, Discontinuance, Bar Baldwin’s Case: 1220

A tenant for life, remainder to B. in tail ; B. levies a fine, with proclamations, sur concessit, to A. and C. for their lives : this fine bars the intail during the said two lives only, and is not a discontinuance omnio : for B. was riot seised by force of the tail, and the fine is sur concessit : it seems that A.’s acceptance of this estate to him and C. is a surrender of the former estate which he had : as in the case of a lease for years made to A. and during the years, he accepts a lease for years of the same land to him and B.

Citations:

[1220] EngR 274, (1220-1623) Jenk 321, (1220) 145 ER 233 (D)

Links:

Commonlii

Land, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.461186

35 H 6, 52 28 H 8 Br Livery, 55 Br Cases, 187, 78, 113, 114 12 H 4, 18 Stamf Praer 10 Dally, 90, Pl 8 Co Lit 77 A F N B 258, 256 Gard, Livery, Charrel Br Cases, 322 By 12 C 2, Ch 24, These Tenures And Services Are Abolish’D: 1220

No livery shall be sued by any heir, if the tenure be not of the King by knight’s service in capite, or in socage in capite, if the heir be of full age at the time of the death of his father, he shall pay half a year’s value of the land : if the tenure be socage in capite, such heir shall pay relief: if he be fourteen years of age at the time of the death of his ancestor, he shall pay nothing. Where the King has a ward, because of another ward who is the King’s tenant in capite by knight’s service ; and the ward because of ward comes first to full age, he shall sue his livery ; but not where his guardiian has sued his livery before him : but though his guardian has sued his livery before him, yet the King shall retain the land and body of the ward because of ward till his full age. So shall every other lord do who has a ward because of ward ; if he has not the seigniory by a defeasible title : if so, the entry of him who has right shall avoid it : so of a mortgage redeemed, and a seigniory granted upon condition. The heir of the King’s tenant by knight’s service, not in capite, at his full age, after he has paid relief, shall have an ouster le maine. The King’s tenant of lands within the Dutchy of Lancaster shall sue livery, but not for lands held of the dutchy, and lying out of the dutchy. 21 E. 4, 60. 26 H. 8.

Citations:

[1220] EngR 445, (1220-1623) Jenk 113, (1220) 145 ER 80 (A)

Links:

Commonlii

Children, Land

Updated: 18 May 2022; Ref: scu.461357

Case LIII 2 H 4, 23 Jointenants, Petition, Scire Facias, Joinder In Actions: 1220

There are two jointenants in fee, their land is seised into the King’s hands ; each of them may hy himself sue a petition of right to the King: and if the King has granted this land; upon a scire facias upon such petition against the Kings patentee ; the jointenancy of the plaintiffs is not a plea for the patentee. By all the judges.
This also seems to be the law in a monstrans de droit and a traverse ; for they are not properly actions. An action does not lie against the King. But regularly jointenants ought to join in actions real and personal.

Citations:

[1220] EngR 253, (1220-1623) Jenk 78, (1220) 145 ER 56 (B)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461165

Case XXIX 19 E 3 Co Lit 222 A B 2 Co 80 A Fitz Entry Congeable, 39 18 Ass Ult Tourson’s Case, 8 Co 170 B, 91 A Cromwell’s Case, 4 Co 27: 1220

A tenant in capite obtains the King’s licence to enfeoff two of the manor of Dale, upon condition to give it back to him in tail, the remainder to E. iri fee ; the feoffment was made to two accordingly ; A. afterwards dies, his heir being within age, afterwards the gift was made to the heir of the body of A. the remainder ut supra. Resolved, that this licence doth not extend to give this land to the heir of the body of A. but a new licence is necessary ; and the obtaining of this licence is a new charge to the land suffered by the two feoffees, and therefore in this case the condition is broken. A. dies seised of other land held of the King in capite, his dying seised of this land, and all this other matter is fond by office. The Kirig shall seize the said manor for the breach of this condition, in right of the said heir being within age, and shall have all the profits of it, as guardian after the deat of A.
By all the justices.
Verba accipienda sunt cum effectu.

Citations:

[1220] EngR 220, (1220-1623) Jenk 16, (1220) 145 ER 13 (A)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461132

In Re Wallis and Simmonds (Builders) Ltd: ChD 1974

The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness.
Templeman J said: ‘But in my judgment this is a contractual lien – it is said to be a contractual lien – and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.’ The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95.’

Judges:

Templeman J

Citations:

[1974] 1 WLR 391, [1974] 1 All ER 561, [1974] AC 467

Cited by:

CitedUnited Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 18 May 2022; Ref: scu.434815

Leeds v Shakerley: 1599

In an action for diverting a water-course from one of three mills, on not guilty, the ven. Fac. shall be where the nuisance was done, sed aliter on a prescription; but a seisin of the mill at the time of the nuisance must be shewn.

Citations:

[1653] EngR 1212, (1599) Cro Eliz 751, (1653) 78 ER 983 (A)

Links:

Commonlii

Cited by:

CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 18 May 2022; Ref: scu.413519

Earl of Peterborough v Mordaunt: 21 Feb 1760

A. created a trust for the payment of incumbrances out of the rents and profits of his real estate, part of which being subject to the arrears of a rent charge to the crown, was discharged by a privy seal, provided l5000 be paid to B. and C.. for securing which a term was created by act of Parliament ; held, that this was a debt affecting the estate, and not within the trusts of the deed, and therefore that the tenants for life must keep down the interest.

Citations:

[1760] EngR 693, (1760) 1 Eden 474, (1760) 28 ER 769

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 18 May 2022; Ref: scu.377032

Ravenhill v Dansey: 1723

A reversionary term raised for securing maintenance and portions for daughters, shall in case of necessity, be mortgaged to pay either, and when fallen into possession shall pay all the arrears of maintenance incurred before it came intom possession.

Judges:

Lord Macclesfield

Citations:

[1723] EngR 33, (1723) 2 P Wms 179, (1723) 24 ER 690

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.389921

Davy v Leeds Corporation: CA 1964

Harman LJ described the section as ‘monstrous legislative morass’ and ‘a Slough of Despond’.

Judges:

Harman LJ

Citations:

[1964] 3 All ER 390, [1964] 1 WLR 1218

Statutes:

Land Compensation Act 1961 6

Cited by:

Appeal fromDavy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 May 2022; Ref: scu.372347

St Ives Corporation v Wadsworth: ChD 1908

A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they wished.
Held: On the facts, the land had been part of an ancient highway and must remain as such. Swinfen Eady J said ‘The question for decision has reference to a small piece of land in the corner between a bridge over the River Ouse and the defendant’s house. The plaintiff’s allege that the land is part of an ancient highway, and forms part of the highway today. The defendant claims it as his own property not through his father from whom he derives the house, but solely by title gained by possession for 12 years.’

Judges:

Swinfen Eady J

Citations:

[1908] Knight’s Local Government Reports 306, (1908) 72 JP 73, (1908) 6 LGR 306

Jurisdiction:

England and Wales

Cited by:

CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 18 May 2022; Ref: scu.320861

Lake v Brutton: 9 Jul 1856

Where a mortgage was taken in part in respect of a sum for which the mortgagee represented himself to the mortgagor as being liable as a surety for the latter, and such representation was erroneous, to the knowledge of the mortgagee : Held, that to that extent the security could not be supported.
A debtor deposited a policy with his creditor as a security. Afterwards the debtor; with a surety who did not know of the deposit, covenantal with the creditor for payment of the debt, and contemporaneously the debtor executed a deed of counter security to the surety, neither deed referring to the deposit of the policy. Subsequently the debtor assigned the policy to the creditor as a security. Held, that the surety, on paying the debt, was entitled to the policy.

Citations:

[1856] EngR 763 (B), (1856) 8 De G M and G 440

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Contract

Updated: 18 May 2022; Ref: scu.291518

Hudson v Macrae: 14 Nov 1863

Angling. Jurisdiction of justices. Claim of right. Non-navigable river. Bona fides. Mens rea. In answer to an information before two justices under stat. 24 and 25 Vict. c. 96, s. 24, for unlawfully and wilfully attempting to take fish in water where another person had a private right of fishery, by angling at an hour not between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, the accused justified under a supposed right on the part of the public to fish in that water.

Citations:

[1863] EngR 949, (1863) 4 B and S 585, (1863) 122 ER 579

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Agriculture

Updated: 18 May 2022; Ref: scu.283604

Holmes v Cowcher: ChD 1970

The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not just interest for the last 6 years.

Judges:

Stamp J

Citations:

[1970] 1 WLR 834

Cited by:

CitedYorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.277164

Rochdale Canal Company v King: 1853

Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear.’

Judges:

Sir John Romilly MR

Citations:

(1853) 16 Beav 630

Citing:

CitedDann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .

Cited by:

CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 18 May 2022; Ref: scu.276430

In re Lloyd; Lloyd v Lloyd: CA 1903

The court was asked as to a mortgagee’s entitlement to require the mortgagor to pay all arrears of interest as a condition of redemption, even if some of the arrears would be statute-barred if the mortgagee were seeking to recover them by action, or to retain all such arrears on accounting to the mortgagor for the proceeds of a sale by the mortgagee.
Held: The mortgagee was not affected by the limitation statute because it was not seeking to recover the interest by bringing an action.

Citations:

[1903] 1 Ch 385

Land, Limitation

Updated: 18 May 2022; Ref: scu.277163

Green v Green: 1981

Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions ‘consequential’ on setting aside a disposition which was reviewable under sub-section 2 and sub-section 2 only applied to dispositions made by one or other of the parties to a marriage.

Judges:

Eastham J

Citations:

[1981] 1 WLR 391

Statutes:

Matrimonial Homes Act 1983 37(3)

Jurisdiction:

England and Wales

Cited by:

Not appliedAnsari v Ansari and others CA 19-Dec-2008
The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 18 May 2022; Ref: scu.279009

Allied Irish Bank Group (Uk) Plc v Henelly Properties Ltd and Others: ChD 7 Jun 2000

The fact that a mortgage advance was to be paid by stages as a building progressed, did not mean that the mortgage securing the advance was delivered in escrow until the building work was complete. If the mortgagee defaulted in his payments the lender was entitled to seek possession of the land at that time.

Citations:

Times 07-Jun-2000

Jurisdiction:

England and Wales

Land, Financial Services

Updated: 17 May 2022; Ref: scu.77758

Fowley Marine (Emsworth) Ltd v Gafford: 1968

A paper title owner of land is deemed to be in possession of the fee simple unless and until someone else acquires possession of it

Citations:

[1968] 2 QB 618

Cited by:

CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 17 May 2022; Ref: scu.267382

Lord Advocate v Lord Blantyre: HL 1879

The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.’

Judges:

Lord Blackburn

Citations:

(1879) 4 App Cas 770

Jurisdiction:

Scotland

Citing:

CitedJones v Williams ExcC 1837
A four-judge of the Court was asked as to the admissibility of evidence in a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the . .

Cited by:

CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedLord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
CitedHiggs v Nassauvian Ltd PC 1975
A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed.
Held: Sir Harry Gibbs said: ‘It is clearly settled that acts of . .
CitedBarton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.267380

Bell v Norman C Ashton Ltd: 1957

The property was on land part of a building scheme, with a covenant not to erect more than two houses on any one plot on the estate. Other restrictive covenants had been breached by the use of some properties as shops and by the erection of dwelling houses which did not meet the minimum value criterion laid down, and in particular there had been fifty ‘temporary or . . semi-temporary residences’ of low value. However eventually the scheme ended up broadly as intended. It was argued that a planning permission which would permit greater densities made the covenants obsolete.
Held: Where the only persons who could consent were the original vendors and they had ceased to be available, there was no dispensing power and, hence, the covenant was absolute. Harman J rejected the argument saying that the defendant’s surveyor had said: ‘that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation.’ and
‘It is said that, quite apart from what happens on the estate, what happened round it affects it. That is a somewhat doubtful doctrine. But supposing that to be so, what has happened? There are three estates round about this one now where people live and jostle each other cheek by jowl, being closer together than are the persons on this estate. The character of the neighbourhood, I agree, has entirely changed in that it is no longer a rural area with an outlying estate upon it, but an urban or suburban area of the City of Leeds. But the change of itself is not such a change as will disentitle the plaintiff to succeed. The area remains a residential area. It is not a commercial area. It is a place for people to live in. The plaintiff and those who share the benefits of these covenants are lucky to live in a place where a little more room is given to breathe the crowded air of this country than have their neighbours. They are lucky, but it is a right which in my judgment the law will support unless by their own negligence they have disentitled themselves to protection.’

Judges:

Harman J

Citations:

(1957) 7 P and CR 358

Cited by:

CitedTurner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
CitedMargerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.263766

London Borough of Sutton v Bolton and Another: ChD 3 Feb 1993

Land had been owned by the authority and used as a children’s home. After a boundary change taking the land outside its area, it sought to sell the land for development. The neighbours, claiming the benefit of a restrictive covenant allowing only one house on the land, objected. Using the 1972 Act, the authority purported to override the covenant by appropriating the property to planning purposes. They now sought validation of that appropriation.
Held: The appopriation was unsuccessful. The section allowed no greater power than the power to acquire land for any particular purpose, and it could not have been acquired for that purpose, since the land was no longer within its district. The authority had to show the appropriation was for a purpose set out in the section, which did not include the satisfaction of the planning purposes of a different authority.

Judges:

Paul Baker QC J

Citations:

[1993] 68 P and CR 166, [1993] 91 LGR 566, [1993] 2 EGLR 181, [1993] 33 EG 91

Statutes:

Local Government Act 1972 122, Town and Country Planning Act 1971 127, Town and Country Planning Act 1990 237 246

Planning, Land

Updated: 17 May 2022; Ref: scu.261592

Hill v Maclaren: 1879

A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1879) 6 R 1363

Cited by:

CitedMoncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 17 May 2022; Ref: scu.260034

F T Challinor v Stone Rural District Cuncil: LT 1972

Judges:

JR Laird

Citations:

Ref/161/1971

Jurisdiction:

England and Wales

Cited by:

CitedBatchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.245983

Grigsby v Melville and Another: ChD 1972

A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
Held: The right asserted by the seller to use the premises as a store gave, in effect, an exclusive right of user over the whole of the servient tenement, and was not to be supported. The cellar had been included in the sale.

Judges:

Brightman J

Citations:

[1972] 1 WLR 1355, [1973] 1 All ER 385

Jurisdiction:

England and Wales

Cited by:

CitedMulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
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: . .
Appeal fromGrigsby v Melville CA 6-Jul-1973
The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
CitedMoncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.244810

Deen v Andrews: 1986

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 the land.

Judges:

Hirst J

Citations:

[1986] 1 EGLR 262, (1986) 52 PandCR 17

Statutes:

Law of Property Act 1925

Citing:

CitedHolland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
FollowedH E Dibble v Moore CA 1969
A greenhouse was not an ‘erection’ within section 62(1). Megaw LJ noted that it was customary to move the greenhouse every few years, . .

Cited by:

CitedElitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.240407

Edwards v Jenkins: 1896

Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington: ‘One parish, one custom.’ Kekewich J said: ‘The only question, therefore, is whether it is properly laid in ‘all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham.’ It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority’.
rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes, saying: ‘But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word ‘district’ as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes.
Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case . . He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred. . and should have to decide against the defendants, because they had proved a custom larger than they claimed’.

Judges:

Kekewich J

Citations:

[1896] 1 Ch 308

Citing:

CitedFitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
CitedCox v Schoolbred CA 15-Nov-1878
Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that ‘people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using . .
CitedBourke v Davis 1890
Kay J considered that a customary right over land might be confined to the inhabitants of a district. . .

Cited by:

CriticisedNew Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.242328

Tiverton and North Devon Company v Loosemore: 1884

After entry onto land under a compulsory purchase order, the Council had a right to possession even though it had been forced out of possession immediately after entry.

Citations:

(1884) 9 HLC 480

Cited by:

CitedRhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.238202

Smirk v Lyndale Developments Ltd: ChD 1975

The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as summarised by Parke B, appeared to be ‘in accordance with justice and common sense’. If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,

Judges:

Pennycuick V-C

Citations:

[1975] Ch 321, [1975] 1 All ER 690

Jurisdiction:

England and Wales

Citing:

CitedKingsmill v Millard 20-Jun-1855
Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a . .
ApprovedTabor v Godfrey 1895
Where a tenant occupies land adjacent to land demised to him by the landlord, he occupies it as additional to the tenancy, and subject to its terms. . .

Cited by:

CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Appeal fromSmirk v Lyndale Developments Ltd CA 2-Jan-1975
Judgment upheld . .
CitedTrustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
CitedGraham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
CitedLong v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228931

Doe d. Croft v Tidbury: 1854

Citations:

(1854) 14 CB 304

Jurisdiction:

England and Wales

Citing:

ApprovedDoe d. Lewis v Rees 1834
Encroachments made by a tenant enured for the benefit of his landlord, ‘unless it appears clearly by some evidence at the time of the making of the encroachments that the tenant intended the encroachments for his own benefit . . ‘ . .

Cited by:

CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.228938

Kingsmill v Millard: 20 Jun 1855

Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title. . . The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.’

Judges:

Parke B

Citations:

(1855) 11 Exch 313, (1855) 19 JP 661, (1855) 3 CLR 1022, 156 ER 849, [1855] EngR 616, (1855) 156 ER 849

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedSmirk v Lyndale Developments Ltd ChD 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as . .
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
CitedChilds and Another v Vernon CA 16-Mar-2007
The parties disputed the boundary between their properties, alleging various trespasses. The judge ordered a single expert witness. The court had been unable to establish the line of the boundary from the conveyances or the Land Registry plans. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228930

Doe d. Lewis v Rees: 1834

Encroachments made by a tenant enured for the benefit of his landlord, ‘unless it appears clearly by some evidence at the time of the making of the encroachments that the tenant intended the encroachments for his own benefit . . ‘

Judges:

Parke B

Citations:

(1834) 6 C and P 610

Jurisdiction:

England and Wales

Cited by:

ApprovedDoe d. Croft v Tidbury 1854
. .
CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.228937

Willoughby v Eckstein: ChD 1936

The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height of the new building was such as to prevent the proper escape of smoke from his chimneys, and was an actionable nuisance. The lease under which the plaintiff held his property conferred upon the tenant certain rights over adjoining land but continued: ‘but without including any rights of light or other easements over other ground or premises and subject nevertheless to all rights and easements belonging to any adjacent property and subject to the adjacent buildings or any of them being at any time or times rebuilt or altered according to plans both as to height elevation extent and otherwise as shall or may be approved of by the ground landlord for the time being.’
Held: The claim for nuisance disclosed no actionable case, and was struck out. Any immediate right of light had been expressly excepted out of the demise.
Luxmoore J said: ‘It is to be observed that the exception to be operative must fulfil three conditions: (a) the agreement must be by deed or writing, (b) it must be express, and (c) it must also have been entered into for the purpose referred to in the section. There is no difficulty with regard to (a) and (b). The real difficulty appears to me to arise on (c). The purpose referred to in the exception to the section is described in the section as ‘that purpose.”
After reviewing the authorities he said: ‘I think the principle to be deduced from these decisions is that in order to prevent the acquisition of a statutory right to light under the Prescription Act there must be an express written agreement under which the actual enjoyment of light by a lessee is permissive throughout the whole of the term created by the lease.’ Applying that approach to the document and having referred in particular to the words about rebuilding or altering the adjacent buildings, he concluded: ‘Taken in conjunction with the exception they appear to me to constitute a grant by the lessee of the right to build during the full term of the demise on the adjacent land including No. 15 Balfour Mews, notwithstanding the effect of such building on the light to No. 13 Balfour Mews; and to constitute, together with the exception from the demise of any right to light, an agreement by the lessee of No. 13 Balfour Mews that any enjoyment of light in respect of the premises demised to her was to be permissive only throughout the whole of the term.’ Accordingly the agreement did come within the terms of section 3.
The court must apply the law as it thinks it stands.

Judges:

Luxmoore J

Citations:

[1937] 1 Ch 167, [1936] 1 All ER 650

Statutes:

Prescription Act 1832 3

Cited by:

CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedCGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
CitedMarlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
CitedSalvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.222585

Denaby and Cadeby Main Collieries v Anson: 1911

A right of public navigation includes the necessary incidents of such passage including the right to drop an anchor. In principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a vessel which, at least for some of the time, floats above that part and does not always rest on it.
Fletcher Moulton LJ said that it was wrong to seek to balance real or supposed advantages against encroachments upon public rights

Judges:

A T Lawrence J, Fletcher Mpulton LJ

Citations:

[1911] 1 KB 171

Cited by:

CitedAttorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
CitedThe Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
CitedDillner, Regina (on The Application of) v Sheffield City Council Admn 27-Apr-2016
The claimant challenged the policy of the respondent council to replace many established trees along streets in the City.
Held: Permission to apply for review was refused: ‘Some concern has been expressed by objectors to the scheme that, in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.214609

Barclay v Barclay: CA 1970

The question arose prior to sale between the sole trustee and an occupying beneficial tenant in common as to whether the property should be sold.
Held: The trustee of land was entitled to sell the property and divide the proceeds as the prime object of the trust was that the house should be sold, notwithstanding the fact that one of the beneficiaries had subsequently moved into the house.

Citations:

[1970] 2 QB 677

Jurisdiction:

England and Wales

Cited by:

CitedWilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 16 May 2022; Ref: scu.207072

Harrop v Hirst: 1868

The inhabitants of a named district, Tamewater, in the parish of Saddleworth, claimed a right to take water from a spout in the highway The claim was for diverting water.
Held: The right was upheld. An action for diverting water is maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff’s legal rights. If you have an infringement of a legal right there is a right of action without actual damage being proved.

Citations:

(1868) LR 4 Ex 43

Jurisdiction:

England and Wales

Cited by:

CitedNicholas v Ely Beet Sugar Factory Ltd CA 1936
The plaintiff owned several fisheries and sought damages after the defendant polluted the riner. He was unable to prove any actual loss.
Held: Disturbance of a several fishery was an invasion of a legal right, and in such a case the injury to . .
CitedNetwork Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Land

Updated: 16 May 2022; Ref: scu.199942

Orr v Mitchell: 1893

Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the disposition is delivered the general rule is that it becomes the sole measure of the contracting parties’ rights if there is a dispute about the subject to which right has been acquired by the purchaser.

Citations:

(1893) 20 R (HL) 27

Jurisdiction:

England and Wales

Cited by:

CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 16 May 2022; Ref: scu.194223

Bernard Wheatcroft Ltd v Secretary of State for the Environment: CA 1982

The developer originally sought permission for 450 homes. That was refused. Before the appeal, it proposed an alternative with 250 homes to be adopted only if the size of the development were considered to be the critical factor. The inspector decided for the smaller scale application. The developer appealed, but the Secretary of State dismissed the appeal saying in addition that it was improper to allow the smaller scale development where the development was not severable.
Held: It had been permissible for the Inspector to grant a lesser permission than had been applied for, by the use of conditions and provided the effect was not to alter the substance of the application, which was a matter on which the Secretary of State had to exercise his judgment. The court went on to explain how the judgment should be reached: ‘The main but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation.’ Where a proposed deveeopment had already been through full consultation, and opposition had been total, it was not necessary to consult again on the smaller proposal.
The court considered the additional difficulties in commons application cases of allowing amendments on apppeal because of the need to allow for the public interest.

Judges:

Forbes J

Citations:

(1982) 43 PandCR 233

Statutes:

Commons Registration Act 1965, Town amnd Country Planning ACt 1971

Jurisdiction:

England and Wales

Cited by:

CitedRegina (Alfred McAlpine Homes Ltd) v Staffordshire County Council 17-Jan-2002
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 . .
CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 16 May 2022; Ref: scu.192183

Abbott v Weekly: 1665

A custom that ‘the inhabitants of the vill, time out of memory, and had used to dance there at all times of the year at their free will, for their recreation’ was held to be a good custom, and the land was established as a common.

Citations:

(1665) 1 Lev 176

Jurisdiction:

England and Wales

Cited by:

CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.192091

Anon: 1469

Title deeds ‘follow the land’ and are inherited as real estate with the land.

Citations:

(1469) Y B 9 Edw 4

Jurisdiction:

England and Wales

Land

Updated: 16 May 2022; Ref: scu.190120

Pullen v Palmer: 1696

The essential difference between tenants in common and joint tenants is that while tenants in common may hold their lands either by several titles or by several rights, joint tenants hold them by one title and by one right. There is no difference as to the possession and manner of taking profits.

Citations:

(1696) 3 Salk 207

Jurisdiction:

England and Wales

Land, Trusts

Updated: 16 May 2022; Ref: scu.190119

Powell v London and Provincial Bank: 1893

The requirement that it was necessary for an agent of a company delivering a deed to have been appointed under seal was surmountable by corporations giving officers authority by deed.

Citations:

[1893] 2 Ch 555

Jurisdiction:

England and Wales

Cited by:

CitedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.188672

Purbrick v Hackney London Borough Council: ChD 26 Jun 2003

The property fell into disrepair. The claimant began to use it for storage, carrying out some refurbishment. He now claimed to own the property by adverse possession.
Held: Littledale was not to be followed unless the facts were strictly on all fours. He had done all that was possible to occupy and retain possession of the premises. He was not required to demonstrate that he had intended to claim ownership of the building but only that he intended to exclude the world. That he had done. ‘ . . . it is to some extent implicit in the present law of adverse possession that an owner of property who makes no use of it whatever should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years is a long period during which to neglect a property completely.’

Judges:

Mr Justice Neuberger

Citations:

Gazette 10-Jul-2003, [2004] 1 P and CR 553

Jurisdiction:

England and Wales

Citing:

CitedLittledale v Liverpool College CA 1900
The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR . .

Cited by:

CitedTopplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.184716

Central Electricity Generating Board v Clwyd County Council: 1976

The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of the land as common land. He took the view, after hearing the evidence as to grazing and other uses, that the land was subject to rights of common within the meaning of the definition in section 22, although none had been registered at the date of the provisional registration of the land as common land, and none were exercisable at the date of the hearing.
Held: The registration was overruled. Any rights of common which might have existed when the provisional registration was made had not been extinguished for want of registration. Goff J. held that an existing right of common was extinguished if not registered by the prescribed date.

Judges:

Goff J

Citations:

[1976] 1 All ER 251, [1976] 1 WLR 151

Statutes:

Commons Registration Act 1965

Cited by:

CitedG and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
CitedLittlejohns, Regina (on The Application of) v Devon County Council and Another Admn 24-Mar-2015
The claimants sought judicial review of the refusal by the defendants to register rights of common in certain lands under the 2006 Act. The defendants said that the rights asserted did not fall within the scope of transitional provisions in the 2006 . .
CitedLittlejohns and Another v Devon County Council and Another CA 6-May-2016
Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.183169

Flureau v Thornhill: 1746

A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. If he has not, the return of the deposit with interest and costs, is all that can be expected.’ ‘Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think the pourchaser can be entitled to any damages for the fancied goodness of the bargain, which he supposes he has lost.’

Judges:

Blackstone J, De Grey CJ

Citations:

(1776) 2 Wm Bl 1078, 96 ER 635, [1746] EngR 175, (1746-1779) 2 Black W 1078, (1746) 96 ER 635

Links:

Commonlii

Cited by:

ApprovedBain v Fothergill HL 1874
The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection . .
CitedHollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Updated: 16 May 2022; Ref: scu.183267

Re Christchurch Inclosure Act: 1888

Citations:

(1888) 38 Ch D 520

Cited by:

CitedHitchin Cow Commoners Trust, Re ChD 5-Dec-2001
Land was registered as a common. Rights had been created over the land under the 1882 Act after the Inclosure Acts. Were these rights in the nature of charitable trusts? No use of the land as a cow common had taken place with living memory, and most . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.182779

Davis v Whitby: CA 1974

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 the right by presuming that it had a lawful origin.’

Judges:

Lord Denning MR, Stamp LJ

Citations:

[1974] 1 Ch 186

Statutes:

Law of Property Act 1925 40

Jurisdiction:

England and Wales

Cited by:

CitedRoland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
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.
CitedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
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 . .
CitedInglorest Investments Ltd v Robert Campbell and Another CA 2-Apr-2004
The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.179839

Giovanni F Crisa Another v Highways Agency: LT 31 Dec 1998

LT COMPENSATION – compulsory acquisition of leasehold shop and premises – jurisdiction of Lands Tribunal where acquisition alleged to be unlawful – whether proof of loss – goods left on premises after entry – mitigation – loss of profits and goodwill – whether compensation can be awarded for loss of quality of life – compensation of andpound;66,675 awarded to Woodstock Engineering Ltd and andpound;1,000 to Mr Crisa.

Citations:

ACQ/132/1998

Land

Updated: 16 May 2022; Ref: scu.168581

Aynsley v Glover: ChD 1875

An original use of land for agricultural purposes does not accommodate a use of a supporting right of way to support use of dominant land for a caravan park or camping site. Such would be an unjustifiable increase in the burden.
Where the court is asked to infer an immemorial user from evidence going back as far as living memory can run, the court can act on evidence of user whether it is continuous or discontinuous.

Judges:

Harman J

Citations:

(1875) 10 Ch App 1023

Jurisdiction:

England and Wales

Cited by:

CitedLynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.606893

Baxendale v Instow Parish Council: ChD 1982

Sir Robert Megarry V-C said: ‘Another instance of movable freeholds, and one that is very much in print in this case, may arise on a grant of foreshore; for such a grant may convey an estate in the foreshore in whatever position it is from time to time. If the sea imperceptibly recedes, the foreshore recedes with it, the foreshore that has been granted moves inland. This has to be considered in relation to the law of accretion and diluvion. Apart from any grant of the foreshore, if there is dituvion the movement of the foreshore appears to divest the frontager of some of his land; for what was dry land becomes part of the new foreshore, and so belongs to the owner of the foreshore, usually the Crown: see In re Hall and Selby Railway (1839) SM and W 327, 333; [1839] EngR 133; 151 ER 139, 141.’ and ‘one would expect sea-grounds, oyster-layings, shores and fisheries to follow the sea as it advances or retreats.’

Judges:

Sir Robert Megarry V-C

Citations:

[1982] Ch 14

Jurisdiction:

England and Wales

Cited by:

CitedLynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.606896

Bowring Services Ltd v Scottish Widows Fund and Life Assurance Society: 1995

Citations:

[1995] 1 EGLR 158

Jurisdiction:

England and Wales

Cited by:

CitedLynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.606895