Tag: Land

Bryant v Lefever: 1879

A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription.

Citations:

(1879) 4 CPD 172

Jurisdiction:

England and Wales

Cited by:

Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 April 2022; Ref: scu.195598

Moody v Steggles: 1879

The owners of a public house claimed the right to affix a sign to the defendant’s house, having been so affixed for more than forty years. The houses had been in common ownership, but it was not clear whether the sign had first gone up whilst the properties remained in common ownership.
Held: No assumption could be made that it had been erected whilst in common ownership. The interest claimed was in the nature of a legal easement, and a grant was to be presumed. An injunction was granted to support the right.

Citations:

(1879) 12 Ch D 261, 48 LJ Ch 639, 41 LT 25

Jurisdiction:

England and Wales

Land

Updated: 29 April 2022; Ref: scu.190032

Milner v Staffordshire Congregational Union (Inc): ChD 1956

The plaintiff had contracted to buy land from a charity. The consent of the Charity Commissioners had not been obtained, but the contract was not conditional on such consent. When the charity trustess realised that consent was required they told the plaintiff that the contract was conditional on such consent and applied for consent. Before that consent was received, the plaintiff purported to rescind the contract, and sue for the return of his deposit.
Held: Dankwerts J said: ‘I have to decide what that Act means when it says: ‘make a sale’. It does not say ‘make a conveyance’ or ‘complete a sale’ or anything of that sort; it simply says ‘make any sale’, and I think for the purposes of the section, though I am bound to say that the matter is not free from doubt, that a sale is made when a contract is entered into by the owners of the property in question for the sale of the property to some purchaser. It is therefore a breach of the terms of the section if a body of charitable trustees enters into a contract to sell the trust property without the authority of the Charity Commissioners. I would observe that there is some support for this view to be found in the documents in the present *59 case. In the alleged contract the phrase is: ‘The property is sold subject to any reservations’, and so on, and in the solicitors’ letter of 24 September 1954, the expression is: ‘The sale of this property must be subject to the consent of the Charity Commissioners.’ It is perhaps then not unreasonable to think that the word ‘sale’ in the section must be used in a similar manner. I am not saying, of course, that a conveyance in pursuance of the purported contract would be any more lawful than the original contract; but it seems to me that the word ‘sale’ must include the making of a contract of sale at least as well as a conveyance on sale.’ The contract was unlawful; the plaintiff was not bound by it; and he was entitled to repayment. The court considered that the expression ‘make any sale’ in section 29 of the 1855 Act, included a contract for sale.

Judges:

Dankwerts J

Citations:

[1956] Ch 275, [1956] 2 WLR 556, [1956] 1 All ER 494

Statutes:

Charitable Trusts Amendment Act 1855 29

Jurisdiction:

England and Wales

Cited by:

Cited – Bayoumi v Women’s Total Abstinence Union Ltd and Another ChD 21-Jan-2003
The claimant sought specific performance of a contract to purchase land from the defendant charity. The defendant had not complied with its obligations under the Act. The cliamant sought to say at the transaction came within s36(3) (that it was . .
Disapproved – Bayoumi v Women’s Total Abstinence Union Ltd and Another CA 5-Nov-2003
A charity entered into a contract for the sale of land. It failed to comply with the requirements under the Act. The purchaser assigned the benefit of the contract, to the claimant who sought to enforce the contract.
Held: The section only . .
Cited – Haslemere Estates Ltd v Baker 1982
A contract for the sale of land by a charity was expressed to be subject to and conditional upon the grant of a consent before 31 March 1982 and if consent was not granted before that date then the contract was to be ‘null and void and of no further . .
Lists of cited by and citing cases may be incomplete.

Land, Charity

Updated: 29 April 2022; Ref: scu.187942

Hair v Gillman: 2000

Citations:

[2000] 3 EGLR 76

Jurisdiction:

England and Wales

Citing:

Approved – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .

Cited by:

Cited – P 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 April 2022; Ref: scu.185830

Hill v Harris: CA 1965

A lessor or vendor does not impliedly warrant that the premises are fit for any particular purpose. It is the contract which allocates the risk of the premises being unfit for such a purpose to the lessee. The lessee has duties to investigate the title, and to ensure that the permitted use under the tenancy was the permitted use in planning law.

Citations:

[1965] 2 QB 601, [1965] 1 All ER 338

Jurisdiction:

England and Wales

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 29 April 2022; Ref: scu.185669

Domb and Another v Isoz: CA 29 Nov 1979

In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract.
Held: A contract had been created. The solicitor had his client’s authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: ‘the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party’s solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange.’
BRIDGE LJ: ‘A solicitor acting for a vendor or a purchaser who holds his client’s signed part of the contract has his client’s ostensible authority to effect exchange of contracts.’
Templeman LJ: ‘In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law.’

Judges:

Buckley, Bridge and Templeman LJJ

Citations:

[1980] 2 WLR 565, [1980] Ch 548, [1980] 1 All ER 942

Links:

lip

Jurisdiction:

England and Wales

Citing:

Cited – Eccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Land, Agency

Updated: 28 April 2022; Ref: scu.178200

Hawkes v Howe: CA 29 Jul 2002

The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner replaced the garage. He claimed to have acquired the land by prescription.
Held: The judge had failed to make an essential finding on an issue as to the adverse possession, and the matter ought to have been reheard. However the overriding objective required a proportional approach, and a rehearing would prejudice the parties. An order was made reducing the damages, in the hope that this would conclude the matter.
There is sometimes said to be a rebuttable presumption that an owner of land will put the posts on his own land so that the fence stands on the boundary.

Judges:

Mr Justice Sumner, Lord Justice Keene

Citations:

[2002] EWCA Civ 1136

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Stephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .

Cited by:

Cited – Witt v Woodhead UTLC 18-Nov-2020
No determined Boundary – Court Findings Enough
Land Registration – Boundary Disputes – Construction of Conveyance – Straight Line Boundary – usefulness of computer-generated lines – party wall – fence posts
Held: ‘It should be borne in mind that a carefully-drawn conveyance plan showing a . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 28 April 2022; Ref: scu.174421

Regina v Minister of Agriculture Fish and Food ex parte Cox: CA 16 Feb 1993

The temporary transferee of part of an agricultural unit which held a dairy quota, must come to be actually operating the agricultural unit before he could make a claim for the transfer of any associated milk quota.

Citations:

Times 16-Feb-1993

Jurisdiction:

England and Wales

Agriculture, Land

Updated: 28 April 2022; Ref: scu.87355

London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd: ChD 29 Jul 1992

A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.’
There can be no possible easement without there being both dominant and servient tenements at all times. The court asked what extent of use could be granted and the grant still be an easement: ‘The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.’

Judges:

His Honour Judge Paul Baker QC

Citations:

Gazette 29-Jul-1992, [1992] 1 WLR 1278, [1993] 4 All ER 157

Jurisdiction:

England and Wales

Cited by:

Appeal from – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Cited – P 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 . .
Cited – Batchelor 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 . .
Cited – Nationwide Building Society v Walter D Allan Ltd ScS 4-Aug-2004
Lady Smith said that she could not conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access. . .
Cited – Moncrieff 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: 28 April 2022; Ref: scu.83153

West Leigh Colliery Co v Tunnicliffe and Hampson: HL 2 Dec 1907

In actions brought by surface owners against the owners of minerals to recover damages for injuries sustained by their property owing to the subsidence caused by the removal of minerals, no award of damages can be given in respect of depreciation caused by the apprehension of future subsidences; nothing can be taken into consideration except the actual damage already sustained.

Judges:

Lord Chancellor (Loreburn), Lords Ashbourne, Macnaghten, James of Hereford, and Atkinson

Citations:

[1907] UKHL 970, 45 SLR 970

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 27 April 2022; Ref: scu.622317

Eden and Others v North-Eastern Railway Co: HL 9 Jul 1907

Under the Railways Clauses Consolidation Act 1845, section 78, a railway company is entitled to prevent the owner, lessee, or occupier of a mine or minerals, from working minerals under or near the railway, provided the company makes ‘compensation for such mine.’
An owner of land let the minerals to a coal company for a term of twenty-one years. Under section 78, a railway company laid an embargo upon the working of a portion of the minerals. Even excluding the portion in question, the land contained more minerals than the company could exhaust during the lease. Held ( reversing the Court of Appeal), that the compensation payable by the railway company was the profit which would have been made on the minerals which were by the requirement of the railway company left unworked, and not merely a sum representing the increased expenses and loss incurred by the lessors and lessees in having to work other coal.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, and Atkinson

Citations:

[1907] UKHL 626

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 27 April 2022; Ref: scu.622303

Mersey Docks and Harbour Board v Owners of Steamship ‘Marpessa’: HL 29 May 1907

A restriction upon ground prohibiting the erection of ‘any building of an unseemly description’ is not sufficiently definite to be capable of being enforced.

Judges:

Earl of Halsbury, Lord James of Hereford, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 619

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 27 April 2022; Ref: scu.622290

Caledonian Railway Co v Glasgow Corporation: HL 13 Mar 1907

The Glasgow Building Regulations Act 1900 provides for the preparation of a register of streets in which is to be set forth the ‘width’ of the street, and section 9 (2) ( c) enacts-‘Any proprietor who may be aggrieved by any entry in the register or omission therefrom . . may within the said period of two months appeal to the Sheriff against the same. The Sheriff shall after the expiry of the said period of two months deal with any such appeal in a summary manner, and may order any entry in the register . . to be deleted or altered . . and his decision shall be final.’
A proprietor deeming himself aggrieved inasmuch as the ‘width’ of the street opposite his property entered in the register was not the actually existing width of the street, brought an action of reduction of the entry while also appealing to the Sheriff.
Held, that the action of reduction, while competent, inasmuch as the proceedings complained of were ultra vires, must be dismissed as premature.

Judges:

Lord Chancellor ( Loreburn), Lord Macnaghten, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 392 – 1, 44 SLR 392 – 1

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 27 April 2022; Ref: scu.622279

Murray’s Trustees v Trustees of St Margaret’s Convent: HL 13 May 1907

A restriction upon ground prohibiting the erection of ‘any building of an unseemly description’ is not sufficiently definite to be capable of being enforced.

Judges:

Earl of Halsbury, Lord James of Hereford, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 633, 44 SLR 633, 45 SLR 633

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 27 April 2022; Ref: scu.622291

Hamilton and Others v Nisbet: HL 13 Mar 1907

The Glasgow Building Regulations Act 1900 confers in certain events power (section 20) on the Master of Works, and on appeal from him (section 21) on the Dean of Guild, to fix the ‘width’ of a street.
Held ( aff. judgment of the Court of Session) that the only width which the Master of Works, or, on appeal, the Dean of Guild, was empowered to fix was the actually existing width of the street.

Judges:

Lord Chancellor ( Loreburn), Lord Macnaghten, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 392, 44 SLR 392

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 27 April 2022; Ref: scu.622282

X North British Railway Order: HL 27 Jul 1908

Provisional Order – Harbour – Dock – Support – Working of Mines – Railways Clauses Consolidation (Scotland) Act 1845, secs. 70 to 78, Applied to Dock.

Judges:

Earl of Strathmore, Viscount Falkland, Chairman, Mr J.D. Hope, M.P., and Mr J. M’Callum, M.P.

Citations:

[1908] UKHL 1007, 45 SLR 1007

Links:

Bailii

Jurisdiction:

Scotland

Transport, Land

Updated: 26 April 2022; Ref: scu.621522

Lodge Holes Colliery Co v Corporation of Wednesbury: HL 30 Jun 1908

Where the level of a road has been lowered by subsidence above a mine, the highway authority has no absolute right to restore the original level and recover the whole expense as damages without considering whether the road could be more cheaply restored at the new level so as to be equally commodious.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten and Atkinson

Citations:

[1908] UKHL 690, 46 SLR 690

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 April 2022; Ref: scu.621513

New Moss Colliery Co v Manchester Corporation: HL 28 Feb 1908

Where land is acquired by agreement for the purposes of constructing waterworks under a Special Act incorporating the Waterworks Clauses Act 1847, and where the undertakers purchase all the mines and minerals under the land so taken, they ipso facto step into the former owner’s place as regards the common law right of support from the minerals under adjacent lands. The common law right of support from minerals under adjacent lands is not taken away by sections 18 to 27 of the Waterworks Clauses Act 1847, nor have the owners of adjacent minerals any greater rights of working as against the undertakers than they had against the former owners. The rights in the two cases are the same.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, Robertson, Atkinson, and Collins

Citations:

[1908] UKHL 981, 45 SLR 981

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 26 April 2022; Ref: scu.621497

Marquis of Linlithgow and Others v North British Railway Co: HL 22 Apr 1914

The Union Canal Act 1817, authorising the formation of a canal from Lothian Road near Edinburgh, to join the Forth and Clyde Navigation Canal near Falkirk, inter alia, enacts-Section 112-‘Provided always and be it further enacted that nothing herein contained shall extend to prejudice or affect the right of any owner or owners of any lands or grounds in, upon, or through which the said canal or any towing paths, wharfs, quays, basins, tunnels, feeders, trenches, sluices, passages, watercourses, or other conveniences aforesaid shall be made, to the mines and minerals lying or being within or under the said lands or grounds, but all such mines and minerals are hereby reserved to such owner or owners of such lands or grounds respectively; and it shall and may be lawful to and for such owner or owners, subject to the conditions and restrictions herein contained, to work, get, drain, take, and carry away to his, her, or their own use such mines and minerals, not thereby injuring, prejudicing, or obstructing the said canal or any of the works or conveniences belonging thereto.’ Section 113-‘And be it further enacted that it shall and may be lawful to and for the said company or their agents or servants, at any time or times, upon reasonable notice, in the daytime, to enter upon any lands through or near which the canal and works hereby authorised to be made shall be or pass, wherein any mines shall or may have been dug, opened, or wrought, and likewise to enter into such mines, and there to find, search, and measure, latch, and use all other means for discovering the distance of the said canal and towing paths from the working parts of such mines respectively; and in case it shall appear that any mine hath been opened or wrought under the said canal, or any of the works belonging thereto, or so near thereunto as to endanger or damage the same, and that such endangering or damaging the canal or other works has been wilful, it shall and may be lawful to and for the said company and their agents, servants, or workmen, at the expense, costs, and charges of the owners or proprietors of such mine and mines, and from time to time, to use all reasonable ways and means for repairing, supporting, sustaining, securing, and making safe the said canal, towing paths, and other works; and such expenses, costs, and charges shall, in case such mines shall have been so wrought or worked subsequent to the passing of this Act, be recovered by the said company, in case of non-payment thereof upon demand, by action at law in the Court of Session; and such expenses, costs, and charges shall when recovered be paid into the hands of the clerk of the said company for the time being for their use and benefit; and in case the said company shall find it necessary for the safety of the said navigation, or any of the works thereto belonging, to stop the working of any mines or minerals under or near the said canal, or any of the works thereto belonging, the said company shall and they are hereby required to make satisfaction to the owners, occupiers, or other persons entitled to receive the same. The company having intimated to a proprietor, from whose predecessor there had been acquired part of the land on which the canal had been formed, that they would hold him responsible for any damage done to the canal by his, or his mineral tenants’, mining operations, he, on the ground that this was ‘to stop the working’ of certain valuable seams of oil shale, called upon the company to make, under section 113, satisfaction for their value.
Held: that section 113 did not apply, as the company, out with the provisions of that section, had, and were entitled if they chose to rely upon, their right of support at common law and as preserved to them in section 112. Question if oil shale under an Act of 1817 or the proceedings following thereon was a mineral?

Judges:

Lord Chancellor (Haldane), Lord Kinnear, Lord Atkinson, Lord Shaw, and Lord Parker

Citations:

[1914] UKHL 626, 51 SLR 626

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 26 April 2022; Ref: scu.620715

Barnsley British Co-Operative Society Ltd v Worsborough Urban District Council: HL 14 Oct 1915

The appellants were a firm using traction engines for the transport of their wares to neighbouring branches. Owing to a certain part of the main road being rendered unsafe for this traffic, the appellants used, and thereby destroyed, a country road unsuited for the support of such heavy traffic. The respondents claimed damages under section 23 of the Highways and Locomotives (Amendment) Act 1878.
Held that the question whether traffic was extraordinary was one of fact. Further, that constant use of the road by the appellants’ traction engine from 1909 to 1911 was not in itself sufficient to render by the end of that period such traffic ordinary.

Judges:

The Lord Chancellor (Buckmaster), Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor

Citations:

[1915] UKHL 530, 53 SLR 530

Links:

Bailii

Jurisdiction:

England and Wales

Land, Transport

Updated: 26 April 2022; Ref: scu.620696

Heriot’s Trust v Caledonian Railway Co: HL 25 Mar 1915

A railway company in 1867 acquired a certain holding of land lying within the limits of their compulsory powers and took a conveyance substantially in the form prescribed by section 80 of the Lands Clauses Consolidation (Scotland) Act 1845 and Schedule A thereof, but they did not register the conveyance within sixty days of the last date in it, although they did so on the same day on which it was delivered. The superiority interest was not redeemed, and the company paid the annual feuduty and, on the death of the vassal from whom they had purchased, a year’s rent as composition. In a petitory action brought by the superiors to recover a year’s rent as a casualty of composition due in 1910, twenty-five years after the previous payment, the company maintained that they had a statutory title, and that that extinguished the superiority and consequently the right to a casualty.
Held that the superiors were entitled to recover the casualty.
Per the Lord Chancellor, Lord Dunedin, and Lord Atkinson on the ground that the company, not having observed the requirement of the Lands Clauses Consolidation (Scotland) Act 1845, sec. 80, as to registering the conveyance within sixty days ‘of the last date thereof,’ had only an ordinary title under which, the superiority interest being unredeemed, they were liable for the feudal casualties, and that as this was the second occasion when a composition was being demanded from the company, a petitory action, and not the statutory action of the Conveyancing (Scotland) Act 1874, sec. 4 (4), was appropriate. Opinions that the statutory title of the Lands Clauses Consolidation (Scotland) Act 1845 was not an ordinary feudal title in a new form, but was a new species of perfect title which neither required nor enabled the disponee to enter with the superior in the usual way; and observations as to the nature of this title.
Per Lord Parmoor on the ground that where lands were acquired within the limits of compulsory powers for a statutory undertaking, the form of the title was merely a question between the disponer and the disponee, and the superiority interest depended upon the provisions of the statute, viz., sections 107-111 and 126 of the Lands Clauses Consolidation (Scotland) Act 1845, ‘the feudal prestations being kept alive as a basis on which to estimate the amount of recurring payments or of the final redemption or compensation” until such interest was redeemed. Opinion that the tenure of such a statutory corporation was fee-simple in its nature, the feudal relationship being extinguished.

Judges:

Lord Chancellor (Haldane), Lord Dunedin, Lord Atkinson, and Lord Parmoor

Citations:

[1915] UKHL 549, 52 SLR 549

Links:

Bailii

Statutes:

Lands Clauses Consolidation (Scotland) Act 1845

Jurisdiction:

Scotland

Land

Updated: 26 April 2022; Ref: scu.620677

Anderson 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 between the ground hereby feued and the said present mansion-house of E. P., and as marked numbers . . on the said sketch or plan endorsed hereon, excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall also be a real burden affecting the said lands and shall operate as a servitude in favour of the said M. and his foresaids in all time coming.’
S. subsequently disponed part of his remaining land, including the parcels of the numbers mentioned in M.’s feucontract, to W., and the disposition contained this clause-‘Under the declaration that it shall not be lawful to the said W. or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued by me to M. and the present mansion-house of E. P., excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of the said M. and his foresaids in all time coming.’
In an action by a singular successor of M. against a singular successor of W. to interdict the erection of tenement houses, held (1) that the words ‘which restriction’ in W.’s disposition must refer to the whole clause beginning ‘it shall not be lawful,’ and not to the limitation of houses to acreage, and co.; (2) that there was consequently no restriction against the building of tenements by W. or his successors on their land; and further (3) that the intended real burden was bad owing to the insufficient identification of the land to be affected.

Judges:

Earl Loreburn, Lord Kinnear, Lord Dunedin, Lord Atkinson, Lord Parker, Lord Sumner, and Lord Parmoor

Citations:

1915 SC (HL) 79, [1915] UKHL 5, [1914] SLR 614, [1915] UKHL 563, 52 SLR 563

Links:

Bailii, Bailii, Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – 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 . .

Cited by:

Cited – Axis West Developments Ltd v Chartwell Land Investments Ltd HL 15-Dec-1998
(Scotland) A had granted to C an heritable and irredeemable servitude right to install services under land. A objected to the installation of a particular pipe, and sought damages to the cost of a grant of similar rights. All conditions restricting . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 26 April 2022; Ref: scu.620681

M’Gregor v Crieff Co-Operative Society Ltd: HL 27 Apr 1915

Held (diss. Lord Sumner) that on a consideration of the whole circumstances the possession required to establish the right of passage had been proved, and that interdict should be granted.
Observations as to what may or may not be presumed in regard to the period and the possession of the long positive prescription.

Judges:

Earl Loreburn, Lord Dunedin, Lord Parker, and Lord Sumner

Citations:

[1915] UKHL 571, 52 SLR 571

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 26 April 2022; Ref: scu.620682

Great Western Railway Co v Carpalla United China Clay Co Ltd: HL 16 Dec 1909

In a district where china clay was no part of the ordinary composition of the soil, and was only rarely and exceptionally present, a railway company had acquired lands by statutory procedure.
Held that the china clay was included in the reservation to the landowner of ‘mines or other minerals’ under the Railways Clauses Consolidation Act 1845, section 77 ( cf. Railways Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 33), sec. 70).

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, Atkinson, Collins, and Shaw

Citations:

47 SLR 612, [1909] UKHL 612

Links:

Bailii

Statutes:

Railways Clauses Consolidation Act 1845

Jurisdiction:

England and Wales

Land

Updated: 25 April 2022; Ref: scu.620596

North British Railway Co v Budhill Coal and Sandstone Co and Others: HL 15 Nov 1909

The Railways Clauses Consolidation (Scotland) Act 1845, sec. 70, enacts – ‘The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them . . . and all such mines . . . shall be deemed to be excepted out of the conveyance of such lands. . . . ‘
Held ( rev. Second Division) that sandstone forming the ordinary rock of the district is not included in the statutory reservation.
Per Lord Chancellor-‘In the first place, I think it is clear that by the words ‘or other minerals’ exceptional substances are designated, not the ordinary rock of the district. In the second place, I think that in deciding whether or not in a particular case exceptional substances are minerals . . the Court has to determine ‘what these words meant in the vernacular of the mining world, the commercial world, and landowners’ at the time when the purchase was effected, and whether the particular substance was so regarded as a mineral.’

Judges:

The Lord Chancellor (Loreburn), Lord James, Lord Atkinson, Lord Gorell, and Lord Shaw

Citations:

47 SLR 23, [1909] UKHL 23

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 25 April 2022; Ref: scu.620589

Kinloch and Another (Kinloch’s Trustees) v Young: HL 17 Dec 1910

Circumstances in which held that for the purpose of establishing by prescriptive use a public right-of-way from one highway to another, which use did not extend to the full prescriptive period, it was right to take into consideration the earlier use of a way between the two highways, although such way began and finished at different points and followed throughout a different line.
Evidence held sufficient to establish by prescriptive use a right-of-way for foot-passengers where the use was that chiefly of tenants, but where little more could be looked for.
Observations (per the Lord Chancellor) on the preponderant weight to be given to the opinion of the Judge of First Instance where the question came to rest on oral evidence.
Held (per Lord Ordinary, Salvesen) that inquiry should be by proof and not by jury trial in an action as to the existence through prescriptive use of a public right-of-way, in which arose the question whether and to what extent there could be taken into account use, at an earlier period, of an entirely different line of passage.

Citations:

[1910] UKHL 356, 47 SLR 356

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 25 April 2022; Ref: scu.619806

Caledonian Railway Order: HL 7 May 1912

Provisional Order – Railway – Power to Dispose of Superfluous Lands – Locus Standi – Owners of Adjacent Property – Objection to Establishment of Offensive Industry on Superfluous Lands – Locus Allowed

Judges:

Earl of Mansfield, the Earl of Strathmore and Kinghorne (Chairman), Mr J. D. Hope, M.P., Sir James Low

Citations:

[1912] UKHL 1052, 49 SLR 1052

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 25 April 2022; Ref: scu.619243

Wild Duck Ltd v Smith and Others: CA 27 Jun 2018

The court was asked whether the owners and landlords of a site known as Waters Edge prevented performance of an obligation by a Management Company to undertake and complete works on common parts of the site, an obligation which (it is said) came into effect on the liquidation and disappearance of the original developer.

Citations:

[2018] EWCA Civ 1471

Links:

Bailii

Jurisdiction:

England and Wales

Land, Insolvency

Updated: 24 April 2022; Ref: scu.618931

Mann and Others v Transport for London: CA 29 Jun 2018

‘Should this court overturn the decision of the Upper Tribunal (Lands Chamber) (‘the Tribunal’) not to award successful claimants their costs of pursuing claims for compensation under Part 1 of the Land Compensation Act 1973 on the indemnity basis, where the compensation awarded to them had exceeded offers of settlement made by them before the hearing? ‘

Citations:

[2018] EWCA Civ 1520

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Land

Updated: 24 April 2022; Ref: scu.618928

Tomlinson v Congleton Borough Council and others: HL 31 Jul 2003

The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal succeeded. The risk of injury arose, not from any danger due to the state of the defendants’ premises, or to things done or omitted to be done on those premises, but from the claimant’s own misjudgment in attempting to dive in water that was too shallow. This was not a risk that gave rise to any duty on the defendants’ part and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the claimant protection. The dangers were signposted, and therefore the 1957 Act did not apply. Under the 1984 Act, the question was whether there was a difference between someone whose entry to the property was as a trespasser, and someone who having entered property lawfully, became a trespasser after by acting outside the terms of the licence. There should not be a difference, and nor should the authority be required to take greater steps than they had to prevent others taking risks which were obvious.
Lord Hoffmann said why the voluntary assumption of risk was a complete answer to his claim: ‘I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with an appropriate moderation my disagreement with the proposition of Sedley LJ that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.’

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote

Citations:

[2003] UKHL 47, Times 01-Aug-2003, Gazette 11-Sep-2003, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8

Links:

Bailii, House of Lords

Statutes:

Occupier’s Liability Act 1984 1, Occupier’s Liability Act 1957 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Tomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
Cited – Hillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
Cited – Donoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Staples v West Dorset District Council CA 5-Apr-1995
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see. . .
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Darby v National Trust CA 29-Jan-2001
The claimant’s husband drowned swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which . .
Cited – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Stevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .
Cited – Hastie v Magistrates of Edinburgh 1907
There are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’. . .
Cited – Glasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
Cited – Cotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
Cited – Karl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
Cited – Bartrum v Hepworth Minerals and Chemicals Limited QBD 1984
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck.
Held: The court dismissed his claim for damages saying ‘So far as the Act . .

Cited by:

Cited – Simonds v Isle of Wight Council QBD 23-Sep-2003
The claimant sought damages, having been injured at a school sports day. The school had carried out a risk asessment and acknowledged a risk of injury.
Held: Not every risk identified could or should be controlled. The injury occurred whilst . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Sandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
The claimant asserted a common law duty on the respondent to maintain a roadway free of frost.
Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Hampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
Cited – Keown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – Helena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
Cited – Cockbill v Riley QBD 22-Mar-2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
Cited – Uren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
Cited – Ovu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 24 April 2022; Ref: scu.185424

Baker and Another v Craggs: CA 16 May 2018

‘The novel issue raised by this appeal is whether the doctrine of overreaching in section 2(1) of the Law of Property Act 1925 (‘LPA 1925′) is capable of operating in circumstances where the conveyance to a purchaser which is alleged to have the overreaching effect is the grant of an easement over land, and the equitable interest which is said to be overreached is not an interest in the easement itself, or even in the land conveyed to the purchaser with the benefit of the easement, but an interest in the servient tenement which the common vendor has previously contracted to sell to a third party, and which (following completion of that sale) the vendor holds as a bare trustee for the third party pending registration of his title with HM Land Registry.’

Citations:

[2018] EWCA Civ 1126, [2018] WLR(D) 299

Links:

Bailii, WLRD

Statutes:

Law of Property Act 1925 2(1)

Jurisdiction:

England and Wales

Registered Land, Land

Updated: 22 April 2022; Ref: scu.616320

Muir, Regina (on The Application of) v Smart Pre-Schools Ltd: CA 9 May 2018

Whether the authority had vires to grant a particular lease.

Citations:

[2018] EWCA Civ 1035

Links:

Bailii

Statutes:

Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967

Jurisdiction:

England and Wales

Local Government, Land

Updated: 20 April 2022; Ref: scu.614923

Schmidt v Schmidt: ECJ 16 Nov 2016

Avoidance of gift of land for lack of capacity

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) No 1215/2012 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Scope – First subparagraph of Article 24(1) – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Article 7(1)(a) – Special jurisdiction in matters relating to a contract – Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership

Citations:

ECLI:EU:C:2016:881, [2016] EUECJ C-417/15, [2016] WLR(D) 607

Links:

Bailii, WLRD

Statutes:

Regulation (EU) No 1215/2012 7(1)(a) 24(1)

Jurisdiction:

European

Cited by:

Cited – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Land, Health

Updated: 18 April 2022; Ref: scu.571775

The Coal Authority v Pegasus Fire Protection Company Limited: SCS 12 Apr 2018

The issue for determination by the court was: whether or not the defender is obliged to indemnify the pursuer, under and in terms of condition 12 of the pursuer’s terms and conditions, in respect of all costs incurred by the pursuer in carrying out remedial action in respect of subsidence damage at the site (where the defender carried out work) in performance of its statutory duties under section 2 of the Coal Mining Subsidence Act 1991?

Citations:

[2018] ScotCS CSOH – 36

Links:

Bailii

Statutes:

Coal Mining Subsidence Act 1991 2

Jurisdiction:

Scotland

Land

Updated: 14 April 2022; Ref: scu.609363

Generator Developments Ltd v Lidl UK Gmbh: CA 8 Mar 2018

Generator appealed from a refusal of an equitable interest in land acquired by the responent

Judges:

Longmore, Lewison LJJ, Rose J

Citations:

[2018] EWCA Civ 396

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 13 April 2022; Ref: scu.605786

Ineos Upstream Ltd and Others v Persons Unknown and Others: ChD 23 Nov 2017

The claimant sought an injunction expressed to be against unknown persons.
Held: Morgan J expressed a degree of concern about orders having this effect, but concluded that (particularly in light of the South Cambridgeshire decision) this procedure was now open to claimants in cases outside section 187B of the Town and Country Planning Act 1990: ‘ I was concerned at the idea that the court might be asked to grant a quia timet injunction against persons who had not yet committed the acts which the injunction would prevent them from doing but yet they would be defined as defendants as Persons Unknown who have committed such acts. For example, the First Defendants are defined as Persons Unknown entering or remaining on specified areas of land but when the proceedings were issued and the ex parte injunctions were granted, no one had entered on the specified land as a trespasser (subject to the possibility that there might have been a trespass on Site 1). Proceeding in this way would seem to produce the result that at the time when the court made its order there were no persons within the defined category of Persons Unknown. How then, later, did some persons come within that category and become subject to the court’s order? Did they become parties by their unilateral action which was action forbidden by the court’s order?’

Judges:

Morgan J

Citations:

[2017] EWHC 2945 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – South Cambridgeshire District Council v Gammell CA 2005
The Council had taken out an injunction under section 187B of the 1990 Act to prevent unknown persons placing caravans on certain lands. The defendants acted in breach of those injunctions, and the Council requested their committal for contempt. The . .

Cited by:

Cited – Vastint Leeds Bv v Persons Unknown ChD 24-Sep-2018
The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 13 April 2022; Ref: scu.601822

Secretary of State for Defence and Another v Percy: ChD 11 May 1998

An owner of land had the right to prevent access to land in order to remove notices even where it was guilty of abuse of statutory power by posting notices which it knew to be under ultra vires regulations. Protesters had sought to enter land to remove notices they believed were deliberately misleading.

Citations:

Times 11-May-1998

Jurisdiction:

England and Wales

Land

Updated: 13 April 2022; Ref: scu.89086

Lock v Abercester Ltd: 1939

A vehicular right of way had been acquired by long use with horse-drawn carts. It was held to be legitimately enjoyed, much later, by mechanically propelled vehicles.

Citations:

[1939] 1 Ch 861

Jurisdiction:

England and Wales

Land

Updated: 12 April 2022; Ref: scu.570355

Owers v Bailey: ChD 2006

Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law.

Judges:

Nicholas Strauss QC

Citations:

[2006] AER (D) 106 (Sep)

Jurisdiction:

England and Wales

Citing:

Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – Saint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
Cited – Christie v Davey 1893
A music teacher gave lessons at home and from time to time held noisy parties. He complained of nuisance when his neighbour retaliated by blowing whistles, banging trays and trying to disturb the music.
Held: The defendant’s actions were . .
Cited – Flynn v Harte 1913
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .
Cited – Geoghegan v Henry 11-Jan-1922
. .
Cited – Hollywood Silver Fox Farm v Emmett 1936
The plaintiffs farmed silver foxes for their fur. During the breeding season, they were nervous, but the neighbour defendant farmer deliberately encouraged his son to fire guns near the pens in order to disturb the breeding and cause economic loss. . .

Cited by:

Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.570356

Flynn v Harte: 1913

Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking the law … The question in most cases is convenience or ‘cussedness’? …’

Judges:

Dodd J

Citations:

[1913] 2 IR 322

Jurisdiction:

England and Wales

Cited by:

Approved – Geoghegan v Henry 11-Jan-1922
. .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.570357

Warren v Gurney: CA 1944

A father purchased a property for his daughter but kept the title deeds until his death.
Held: In deciding whether or not the executors of the father had rebutted the presumption of advancement, the Court took he view that there was ample evidence to justify that conclusion of the judge. The the father’s retention of the title deeds from the time of purchase to the time of his death was a very significant fact because the title deeds were ‘sinews of the land’. The Court did not state, however, that possession of title deeds was conclusive in the determination of a person’s property rights, but relied not only on the possession of title deeds to decide its case but also the fact that the father had paid for the full price and that there was contemporaneous declarations by the alleged donor as to his interest.

Judges:

Morton LJ

Citations:

[1944] 2 All ER 472

Jurisdiction:

England and Wales

Land

Updated: 12 April 2022; Ref: scu.570865

Newnham v Willison: CA 1987

Kerr LJ considered the exercise of an easement over land (a sweep of a curve over a driveway) by force, saying: ‘In my view, what these authorities show is that there may be ‘vi’ – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word ‘vi’ or ‘force’, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner.’

Judges:

Kerr LJ, Eastham J

Citations:

(1987) 56 PandCR 8

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Cited by:

Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.569658

Browns Case: 1581

A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord’s fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord’s fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.

Citations:

[1581] EngR 13, (1581) 4 Co Rep 21, (1581) 76 ER 911

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 12 April 2022; Ref: scu.429391

Hawkin’s Case: 1794

If tbere be a special custom in a parish, that the adorning of the inside of the chancel of the church shall be done at the charge of the owners arid occupiers of ancient houses, yet they are not bound by such a custom both to ornament and to repair the chancel ; for the parson is bound to repair of common right, and the custom does not release him: nor can the owners and occupiers of mills or racks be rated towards such ornaments ; for where a temporal inheritance is to be charged by a particular custom the custom must be strictly pursued.

Citations:

[1794] EngR 806, (1794) 5 Mod 389, (1794) 87 ER 723

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Ecclesiastical

Updated: 12 April 2022; Ref: scu.369738

Trent v Hunt: 1853

A mortgagor in possession continues to have a legal right to receive the rents in his own name. However since he had no legal interest in the reversion, he could not forfeit for breach of covenants in the lease.

Judges:

Alderson B

Citations:

(1853) 9 Exch 14

Jurisdiction:

England and Wales

Cited by:

Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 12 April 2022; Ref: scu.276787

Saint v Jenner: CA 1973

The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car’s undercarriage.
Stamp LJ said: ‘the learned judge found that as originally planned and laid down the ramps were not a substantial interference with the right of way. In this connection it is to be observed that in deciding what is a substantial interference with the dominant owner’s reasonable user of a right of way, all the circumstances must be considered, including the rights of other persons entitled to use the way: here the rights of the defendants in connection with their property and riding activities; and there was, in our judgment, evidence on which the judge could properly hold, as he did, that the ramps as originally planned and constructed did not constitute a substantial interference.’

Judges:

Stamp LJ

Citations:

[1973] Ch 275, [1973] 1 All ER 127

Jurisdiction:

England and Wales

Cited by:

Cited – Moncrieff 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 . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.260028

Hellawell v Eastwood: 1851

In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: ‘The only question, therefore, is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integre, salve, et commode, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causa, or in that of the Year Book, pour un profit del inheritance (a), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel’.

Judges:

Parke B

Citations:

(1851) 6 Exch 295

Jurisdiction:

England and Wales

Cited by:

Cited – Elitestone 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’ . .
Cited – Botham and others v TSB Bank Plc CA 30-Jul-1996
A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.240421

Ex parte Barclay: 1855

The court asked what was meant by a fixture: ‘By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things.’

Citations:

(1855) 5 De G M and G 403

Jurisdiction:

England and Wales

Cited by:

Approved – Boyd v Shorrock 1867
. .
Cited – Elitestone 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: 12 April 2022; Ref: scu.240418

Boyd v Shorrock: 1867

Judges:

Sir W. Page Wood V.-C

Citations:

(1867) LR 5 Eq 72

Jurisdiction:

England and Wales

Citing:

Approved – Ex parte Barclay 1855
The court asked what was meant by a fixture: ‘By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be . .

Cited by:

Cited – Elitestone 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: 12 April 2022; Ref: scu.240417

Marlborough (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 occupied by the adjoining owner no right or easement of light or air exists in respect thereof or has been or shall at any future time be acquired by the Building Owners or any one deriving title through or under them and the adjoining owner and the Freeholders and all persons deriving title through or under them or either of them shall have the right to intercept light and air coming to the said windows.’
Held: the second and third limbs of this clause entitled the adjoining owner to redevelop in a way that would interrupt light. Accordingly the proviso to s.3 was triggered and the building owner did not acquire by prescription rights to light across the land of the adjoining owner. The nature of restrictive covenants was discussed. The judge also drew attention to the difference between acquisition by grant at the date of the disposition and acquisition by prescription based on actual enjoyment after that date.
Lightman J said: ‘Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access to light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 Ch D 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167).’

Judges:

Lightman J

Citations:

Unreported, 20 December 1996

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Mitchell v Cantrill CA 1887
In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house ‘with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the . .

Cited by:

Cited – Midtown 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 . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another CA 12-Mar-2008
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not . .
Cited – CGIS 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 . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
Cited – Salvage 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, Limitation

Updated: 12 April 2022; Ref: scu.222586

Cowper v Laidler: ChD 1903

Buckley J said: ‘The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the easement.’

Judges:

Buckley J

Citations:

[1903] 2 Ch 337

Jurisdiction:

England and Wales

Cited by:

Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Midtown 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 . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 12 April 2022; Ref: scu.222600

D M’Ewing and Sons v Renfrewshire County Council: 1960

Judges:

Lord Clyde

Citations:

[1960] SC 53

Jurisdiction:

Scotland

Cited by:

Cited – Ryde 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 April 2022; Ref: scu.199730

Bristol and West Building Society v Baden Barnes and Groves: QBD 13 Dec 1996

cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.

Citations:

Unreported, 13 December 1996

Jurisdiction:

England and Wales

Citing:

Appealed to – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .

Cited by:

Appeal from – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Land, Limitation

Updated: 12 April 2022; Ref: scu.184541

Wickhambrook Parochial Church Council v Croxford: CA 1935

The statutory powers given by the Act are not exercisable against the public generally or any class or group of persons which forms part of it. The purpose of the Act was to abolish proceedings in ecclesiastical courts for enforcing the liability to repair. The only person against whom the liability may be enforced is the person who, in that obscure phrase, ‘would, but for the provisions of this Act, have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court in a cause of office promoted against him in that court on the date when the notice was served.’

Judges:

Lord Hanworth MR

Citations:

[1935] 2 KB 417

Statutes:

Chancel Repairs Act 1932

Jurisdiction:

England and Wales

Cited by:

Questioned – Parochial 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 . .
Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 12 April 2022; Ref: scu.184040

Ipswich Borough Council v Moore and Another: CA 25 Jul 2001

A statute in 1950 granted to the port authority powers, inter alia, to grant licences for moorings on the foreshore. These powers overrode the ancient Royal Charter which vested the foreshore in the local authority. Accordingly licences issued by the port authority were effective and binding as against the local authority.
The court considered whether the Council, as owner of the foreshore was able to control licensing for the deep water moorings adjacent.

Judges:

Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Kay

Citations:

Times 25-Oct-2001, [2001] EWCA (Civ) 1273, [2001] EWCA Civ 1273

Links:

Bailii

Statutes:

Ipswich Docks Act 1950 12, Charter of Henry VIII of 1518/19

Jurisdiction:

England and Wales

Citing:

Appeal from – Ipswich Borough Council v Moore and Another ChD 4-Jul-2000
Historically, powers had been granted to the authority, as riparian owners of the port, but powers had also been given to what had since become the Port Authority. The Authority had been given power to regulate traffic in the river, and to charge . .

Cited by:

Cited – Regina on the Application of Dart Harbour and Navigation Authority v the Secretary of State for Transport Local Government and the Regions QBD 26-Jun-2003
Captain Wyatt owned land near the harbour and wanted to moor his boat by it. The Harbour authority said he needed a licence. The Harbour authority requested him to move the boat as a danger to navigation. The Captain sought a judicial review of the . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land, Transport

Updated: 12 April 2022; Ref: scu.166709

Paige v Webb: CA 26 Jul 2001

The claimant sought rescission of a consent order for specific performance made in an earlier action. The purchasers had not complied simply with the order, but had sought to bring back certain parts of the original contract.
Held: Once an order for specific performance has been made, the matter of how the contract is to be performed lies with the court, not the parties. The consent order itself referred back to the contract, and the remaining conditions still applied. The consent order should not be rescinded on these grounds. The seller had refused to complete without delivering a deed of rectification, nevertheless that would not in the circumstances pose any practical problem.

Judges:

Lord Justice Laws, Lord Justice Mummery, Sir Anthony Evans

Citations:

[2001] EWCA Civ 1220

Statutes:

Land Registration Act 1925 110(2)

Jurisdiction:

England and Wales

Citing:

Cited – Singh v Nazeer 1979
Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice, Registered Land

Updated: 12 April 2022; Ref: scu.159907

Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd: PC 22 Feb 1993

(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of Appeal of Jamaica ordered the return of the excess above 15%.
Held: A penalty was ‘a contractual provision which requires one party in the event of his breach of the contract to pay or forfeit a sum of money to the other party is unlawful as being a penalty, unless such provision can be justified as being a payment of liquidated damages being a genuine pre-estimate of the loss which the innocent party will incur by reason of the breach. One exception to this general rule is the provision for the payment of a deposit (customarily 10% of the contract price) on the sale of land. ‘ A deposit in excess of 10% of the purchase price (25%) was not properly described as ‘earnest money’ and may be treated rather as a penalty. As such, the whole deposit taken was repayable to the defaulting purchaser.

Judges:

Lords Keith, Jauncey, Donaldson, Browne-Wilkinson, Sir Christopher Slade

Citations:

Gazette 07-Apr-1993, [1993] 2 WLR 702, [1993] 2 All ER 370, [1993] AC 573, [1993] UKPC 7

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Considered – Stockloser v Johnson CA 1954
Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser’s default in contracts other than those relating to land.
Cited – Linggi Plantations v Jagatheesan 1972
( Hong Kong Final Court of Appeal – from Malaysia) Lord Hailsham suggested that where, on investigation, the real nature of an initial payment, which was termed a deposit, was shown to be the imposition of a penalty, it might be recovered by the . .

Cited by:

Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Cited – Bidaisee v Dorinsa Yusidai Sampath and Others PC 1993
(Trinidad and Tobago) The parties contracted for the sale of a half share of land to the co-owner for TT$2 million. A 10% deposit was paid. A notice to complete was not met. The vendor sold the share to others for more. Arguments as to the validity . .
Cited – Union Eagle Limited v Golden Achievement Limited PC 3-Feb-1997
(Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 10 April 2022; Ref: scu.90608

Struggles and others v Lloyds TSB plc: TCC 10 Feb 2000

A mineral quarry was repossessed under a mortgage and attempts were made to sell it. A claim that it had been sold at an undervalue was defeated. The valuation of such an asset was to make allowance for capitalisation of the income stream from mineral royalties. The sale of the property had been delayed long enough to allow a proper valuation, and a further sale would have put the bank at risk of other allegations. The bank had obtained the best price reasonably obtainable.

Citations:

Gazette 10-Feb-2000

Land, Banking

Updated: 10 April 2022; Ref: scu.89596

Target Home Loans Ltd v Iza Ltd: CC 20 Jan 2000

(Central London County Court) The bank recovered possession of leasehold premises. The landlord served a notice requiring repairs on the tenant, but refused to allow the mortgage in possession a key to enter the property. They then claimed to have recovered possession peacefully. The bank applied for relief from forfeiture and succeeded. The notice was pointlessly served on the tenant who no longer had access to carry out any repairs, and the counter-notice was effective.

Citations:

Gazette 20-Jan-2000

Statutes:

Leasehold Property (Repairs) Act 1938

Landlord and Tenant, Land

Updated: 10 April 2022; Ref: scu.89719

Attwood and Another v Bovis Homes Ltd: ChD 18 Apr 2000

The dominant land, which had always been used for agricultural purposes, had a prescriptive right to drain surface water over neighbouring land. Though the proposed development of a housing estate on the dominant land, would be very substantial, the right could still be enjoyed and would not be lost. An easement had been acquired by prescription, but after such acquisition, the nature of the use of the dominant tenement changed, substantially increasing the burden of the easement.
Held: Such increased usage could lead to a loss or suspension of the easement. The result might however differ according to the nature of the easement. It would be more readily follow in right of way cases than in rights of support. In this case a right of discharge of water from land developed from agricultural use would not lead to a loss of the easement.

Citations:

Times 18-Apr-2000, Gazette 18-May-2000, [2001] Ch 371

Jurisdiction:

England and Wales

Cited by:

Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 April 2022; Ref: scu.78022