Land and property caselaw crib-sheet

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A


Contents

AG Securities v Vaughan

Unlikely to be exclusive possession where tenants of a shared house come and go at different times

Ahmed v Kendrick

When a co-owner mortgages his share, this is sufficient to severe a joint tenancy


Antoniades v Villiers

Whether there is exclusive possession sufficient to amount to a lease is determined on the facts, not the wording of the document [landlord's stated right to share possession of one-bedroom flat with couple deemed to be a sham]


Abbey National v Cann

Whether actual occupation rights are binding against purchase is determined by whether there is occupation at the time of purchase, not at registration [registered owner's mother failed to assert her actual occupation rights against mortgage lender]=


Alec Lobb Garages v Total Oil

Collateral term in a mortage will not be struck out just because it is burdensome and unreasonable -- there needs to be 'morally reprehensible' exploitation=


Amsprop Trading v Harris

s.56 of LPA1925 allows a person identifiable in a covenant to enforce the rights of an original covenantee=


Ashburn Anstalt v WJ Arnold

Licence can be construed as a lease if it is equitable to enforce against purchaser (and thereby avoid the complication of Binion v Evans) [lessee of shop assigned lease, but allowed to remain under 'licence' for six months; licence construed as a lease]=


Austerberry v Oldham Corporation

Burden of positive covenant does not run with land [claimant could not enforce covenant to maintain road made with his predecessor in title] (see also Rhone v Stevens) |

B


Biggs v Hoddinot

A collateral agreement in a mortgage may be valid provided it does not hinder redemption or continue after redemption (See also Kreglinger v New Patagonia)=

Bilson v Residential Appartments Ltd

Court can grant relief to tenant even after re-entry by landlord for breach of covenant=

Binion v Evans

A Constructive Trust may be imposed to prevent occupation under a licence being revoked [widow could not be evicted from cottage by new owners, despite being a mere licencee] (but see Ashburn Anstalt)*Barclays Bank v O'Brien=

Mortgage lender has constructive notice of undue influence by one co-mortagor over another, if it fails to make clear the risks associated with the mortgage [mortgagee could not enforce against borrower's wife, as she was not made aware of the risks]*Buckinghamshire CC v Moran=

Possession can be 'adverse' despite that the paper owner has no present use for the land (despite Leigh v Jack) [adverse possessor made a garden out of strip of land belonging to local authority]=

Bridle v Ruby

'Lost modern grant' is not obsolete; a purported easement which fails the requirements of the Prescription Act may still succeed on lost modern grant [easement of access not continuous, but long enough for LMG to operate]=

Bruton v London and Quadrant Housing Trust

In some circumstances, a lease can be created out of a licence=


Bull v Bull

Where co-owners contribute unequally to purchase price, they are assumed to be tenants in common [son failed to to evict mother]=

Burgess v Rawnsley

An offer to sell a share of land held in joint tenancy acts to sever the joint tenancy, even if the sale is not carried out (co-owner A offered to sell share to co-owner B, not allowed to claim right of survivorship when B died, even though sale not effected) |

C


Cable v Bryant

An easement may be implied where otherwise a landlord would derogate from his grant of a lease [landlord blocked ventilation to stable, rendering it useless]=


Caunce v Caunce

In unregistered conveyancing, purchaser does not have to make intrusive inquires to avoid being fixed with notice [mortgage lender did not have to inquire into wife's interest in husband's property] (but this view is out of favour at preset where mortgagees are concerned: Royal Bank of Scotland v Etridge, Kingsnorth v Tizard_)=

Chhokar v Chhokar

'Actual occupation' may be effective in the occupier's absence, if there is an intention to return [man sold house to friend while wife in hospital]=


City of London Building Society v Flegg

When beneficial interests are overreached, they can no longer by overriding interests (because they are interests in money, not land) [owner of overreached beneficial interest could not claim overriding interest by actual occupation]=


Cheltenham & Gloucester v Norgan

What constitutes a 'reasonable time' for the purposes of s.36 of the Administration of Justice Act depends on the facts of the case (and, as here, might be as long as the mortgage term)=


Clore v Theatrical Properties Ltd

A licence creates no interest in land, so its terms are not binding on successors in title [asignee of licencee of a theatre cafe could not enforce terms against landlord]=


Cityland & Property (Holdings) Ltd v Dabrah

Court can vary mortgage terms if they are unconscionable [interest was equivalent to 17% pa] (but see Multiservice Bookbinding)=


Commission for the New Towns v Cooper Ltd

An offer and acceptance in separate documents does not consitute an exchange of contracts for the purposes of s2 LP(MP)A 1989=


Crabb v Arun DC

In satisifying estoppel rights, the court does not have to realize the expectation of the claimant, if justice could be done by a lesser award (contrary to traditional view of Dillwyn v Llewellyn)=


Crow v Wood

Easement of fencing may be enforceable against successor in title, despite that it carries an obligation of expenditure=


Cuckmere Brick v Mutual Finance

Mortgagee exercising a power of sale has a duty to raise the best possible price [land auctioned by mortgagee failed to list all planning permission grants] |

D


Dearle v Hall

Priority of mortgages of an equitable interest determined by time of notification to trustees=

Dillwyn v Llewellyn

To satisfy estoppel rights, court should give effect to the expectation of the claimant [claimant was entitled to get freehold rather than life interest, as this is what he had expected] (but this expansive view is now out of favour: see Crabb v Arun DC)=

Drake v Whipp

Where there is a common intention to share the equitable interest in land in a certain way, a Constructive Trust may displace the resulting trust that arises on the basis of contribution to purchase price |

E

Elliston v Reacher

In a building scheme, convenants made with the vendor may be enforceable by the neighbouring residents=

Errington v Errington & Woods

A licence may bind third parties if it is coupled with an 'equity' [widow unable to recover possession of house from daughter-in-law, following grant of licence by late husband]=


Expert Clothing Ltd v Hillgate House Ltd

A s.146 notice is defective if it states that a remediable breach of covenant is irremediable [breaches of covenants to repair were not irremediable] |

F


Fairclough v Swan Breweries

a mortage provision that renders redemption illusory may be void [mortgage which could not be redeemed until six weeks before the aend of a twenty year lease was effectively irredeemable] (but see Knightsbridge Estates v Byrne)=

Federated Homes v Mill Lodge Properties

In determining whether the benefit of a covenant runs in equity, it is 'annexed' to the land if it merely 'touches and concerns' the land (by the action of s.78 LPA1925)=


Flowermix v Site Developments

Proprietary estoppel does not necessarily require detrimental reliance as a separate element=


Four-Maids Ltd v Dudley Marshall

A mortgagee's right to possession is a right, not a rememdy [claimant allowed possession even though it had not given an opportunity for the defendant to satisfy arrears] |

G


Gardner v Hodgson's Kingston Brewery

Long use does not turn a licence into an easement [after 40 years use, use of a path that was accompanied by payment was a revocable licence]=


Gillett v Holt

For the principle in Re Basham to apply, and give rise to proprietary estoppel, it is unecessary that the promise be irrevocable [claimant accepted lower salary from defendant in turn for a substantial bequest; defendant estopped from revoking will]=

Gore and Snell v Carpenter

For mutual agreement to sever a joint tenancy, the agreement must be accepted by all parties [draft separate agreement not formalized before husband died]=


Greasley v Cooke

A presumption that proprietary estoppel has arisen may be inferred from an assurance, combined with conduct that indicates reliance on that assurance. It is not necessary to prove reliance; the onus is on the person who disputes the estoppel to disprove it [family could not evict long-serving housekeeper who had been promised to right to live in the house rent-free]=


Green v Ashco Horticulturalist Ltd

An easement must arise by right, not permission [no right of access from shop to passageway when landlord could lock gates across it] (but acquiescence is not permission --- see Mills v Silver)=

Grigsby v Melville

No easement where it would deprive the servient owner of use of the land [right of storage in cellar was effectively exclusive, and hence a licence not an easement] |

thank you

yes it did

Please write a more constructive finding to explain your point of view on this case.

Halifax Building Society v Thomas

A mortgagee exercising a power of sale must hand over any surplus to the mortgagor [unusually, property of mortgagor in default raised more money at sale than necessary to satisfy the dedbt]=


Halsall v Brizell

Burden of positive covenant may run with land at common law (despite Austerberry v Oldham) if the defendant takes a benefit from the same covenant [defendant got the benefit of use of a road, and had to accept the burden of maintaining it]=

Hair v Gillman

Right to park a car can amount to an easement by action of s.62 LPA1925|=

Harmer v Jumbil (Nigeria) Tin Areas Ltd

Lease contains an implied term that the landlord will not derogate from his grant of a lease [landlord built too near tenant's explosives store for tenant's land to be usable]=


Harris v Goddard

A notice to severe a joint tenancy must evince a serious and immediate intention to severe [request in divorce petition not sufficient, but see Re Draper's Conveyance]=

Hill v Tupper

An business benefit will normally constitute a personal right, not an easement [exclusive right to rent pleasure boats to visitors not a right benefiting the land, but see Moody v Steggles]=

Hillman v Rogers

s.62 of LPA1925 will not create an easement when there is merely a contract to grant a conveyance=


Hurst v Picture Theatres

A contractual licence may be irrevocable until the contract is performed |

I


Ives v High

An easement arising from estoppel is binding on purchaser even if unregistered [right of access to garage recognized as enforceable easement as it had been relied on detrimentally] |

J


Jones v Pritchard

Dominant owner not liable to servient owner for damage resulting from proper use of easement [defendant not liable when fumes escaped into servient owner's house from chimney flue used by virtue of an easement]=

Jones v Smith

Equitable interests binding on purchaser if he has constructive notice (pre LCA1925) |


K


Kinch v Bullard

Notice to severe joint tenancy effective the moment it arrives [wife failed to revoke notice after destroying unread notice shortly after husband's death]=


Kingsnorth Finance v Tizard

Mortgagee should look into mortgagor's domestic circumstances, to avoid being bound by spouse's equitable rights=


Knightsbridge Estates v Byrne

A long postponement of mortgage redemption is not automatically void [40 year term between businesses at arms length on a freehold property was upheld] (but see Fairclough v Swan Breweries)=


Kreglinger v New Patagonia Meat & Cold Storage Co

Collateral agreement in mortgage not automatically void [mortgage gave mortgagee right to buy mortagor's sheepskins at market price] |

L


Lace v Chantler

For there to be a lease, the duration of occupancy must be certain [no lease for the 'duration of the war']=


Lace v Craddock

Commercial co-owners assumed to be tenants in common [a number of companies contributed to the cost of land for development]=


Leigh v Jack

Squatter's occupation not 'adverse' if paper owner has no present use for the land (but see now Buckinghamshire CC v Moran) [use of neighbour's land to dump rubbish not adverse, as land was unused]=


Littledale v Liverpool College

Adverse possession requires an intention to possess which amounts to excluding the paper owner [fencing land subject to a right of way did not amount to dispossessing the paper owner, as the fencing could be interpreted as protecting the right of way]=

Liverpool CC v Irwin

Lease contains implied covenant by landlord to keep common parts of the land in good repair, as far as reasonably practicable [landlord had a duty to maintain lifts and stairwells, but it was impossible to discharge because of vandalism]=


Lloyd v Dugdale

Property rights accruing to a company cannot be transferred to its directors, not vice-versa=

Lloyds Bank v Rossett

Contributing to the cost of running a house does not, in itself, create a beneficial interest for the contributor [wife unable to claim beneficial interest in husband's house by virtue of contribution to decorating work]=

London CC v Allen

A covenant only binds covenantors successors if covenantee owns land that can benefit from the covenant [covenant not to build was unenforceable as the covenantee did not own land]=

London & Blenheim Estates v Ladbroke Retail Parks Ltd

An easement can only exist if the dominant tenenment is identifiable at the time of the grant [easement of parking failed because the land benefited was not determined at the time of conveyance]=

Lyus v Prowsa

A Constructive Trust may be imposed on a purchaser to give effect to unregistered interests that he had agreed to honour |

M

Martinson v Clowes

Mortgagee cannot exercise the power of sale of mortgaged property by selling to himself, even at market value=

McCall v Abelesz

Harassment of tenant by landlord may amount to a breach of an implied covenant of quiet enjoyment [landlord disconnected services from house for 18 months]=


Midland Bank Trust Co v Green

In unregistered conveyancing, 'money's worth' can be a trivial amount of money [man could sell to wife for a nominal sum and suppress son's unregistered estate contract] (but see Peffer v Rigg)=


Mills v Silver

For the purposes of determining whether a purported easement has been used nec precario, acquiesence does not equate to permission [that an access road to an isolated hill farm had been used without complaint did not mean that it had been used by permission]=


Moody v Steggles

Despite Hill v Tupper a business benefit may amount to an easement where the business is closely associated with the land [right to hang a pub sign held to be an easement]=


Morrells v Oxford United Football Club

s.79 LPA1925 can be excluded by the construction of the conveyance as a whole=


Mortgage Corporation v Shaire

Application of mortgagees for an order for sale of co-owned property must be reconsidered in the light of TOLATA=


Multiservice Bookbinding v Marden

A mortgage term is not unconscionable merely because it is unreasonable [mortgage interest linked to value of Swiss Franc; bad deal for mortgagor, but not unconscionable] |

N


National Provincial Bank v Ainsworth

A spouse's rights to occupy the matrimonial home are personal, not proprietary [mortgage lender could enforce against wife of defaulting husband, when she had no proprietary interest of her own in the house]=


Nickerson v Barraclough

An easement can arise out of necessity [defendant knocked down bridge rendering claimant's land inaccessible]=


Noakes v Rice

A colleteral agreement in a mortgage will be void if it is a 'clog' on redemption [mortgagor obligation to purchase beer from mortgagee for entire duration of lease was void, but see Kreglinger v New Patagonia] |

P

Peffer v Rigg

A person who buys registered land with notice of an unregistered beneficial interest for a nominal consideration is not a purchaser 'in good faith', and takes subject to the beneficial interest=


Pye v Graham

For adverse possession, what the squatter must show is intention to possess, not intention to own [claimant's expressed willingness to pay rent for grazing his livestock did not defeat his claim to adverse possession] |

R


Re 88 Berkeley Road

Notice to severe a joint tenancy is validly served if it arrives, whether or not it is read=


Re 90 Thornhill Road

In an SLA settlement, one joint tenant for life cannot force a sale against the wishes of the others=


Re Ballards Conveyance

In determining whether the benefit of a covenant runs in equity, it will only be 'annexed' to the land if it benefits the whole of the land, not part of it [covenantor who owned 18 acres covenanted to benefit owner 1700 acres]=


Re Basham

Proprietary estoppel may operate even where the contested interest in land is one that may accrue in the future [claimant acted to her detriment in expectation of benefiting under defendant's will, but defendant died intestate]=


Re Buchannan-Woolaston's conveyance

Where purpose of trust of land is continuing, court should be reluctant to order sale [trust of land to maintain a clear sea view should not be defeated by one beneficiary's wish to sell]=


Re Chowood's registered land

Rectification to give effect to an overriding interest does not lead to compensation (register altered in favour of squatter; it was not the alteration that had caused the owner's loss)=


Re Dolphins Conveyance

Whether land regarded as a 'building scheme' for enforcement of covenants is enterpreted rather liberally [100-year-old conveyance created a building scheme, even though there was no plan of the scheme when the conveyance was made]=


Re Draper's conveyance

A request to the court for an order to sell a house is sufficient to sever a joint tenancy [application for order of sale in divorce petition, but see Harris v Goddard -- intention to sever must be immediate]

Re Ecclesiastical Commissioners' Conveyance

s.56 LPA1925 allows landowners identifiable in a convenant to benefit from the covenant, despite not being named [covenant made with certain landowners for the benefit of land adjoining that of the convenantor, but enforceable by all neighbouring landowners]=


Re Ellenborough Park

For a rights to be an easement: (i) there must be a dominant and servient tenement, which (ii) are different persons; (iii) the right must 'accommodate' (benefit) the dominant land; (iv) it must be capable of being the subject matter of a grant=


Reeves v Lisle

Notwithstaning Samuel v Jarrah Timber, an option to purchase in favour of a mortgagor can be valid if made outside of the mortgage itself=


Rhone v Stevens

Burden of positive covenant does not run with land [claimant could not enforce covenant to maintain road made with his predecessor in title] (confirming Austerberry v Oldham)=


Roake v Chadha

The effect of s.78 LPA1925 (as interpreted in Federated Homes) can be exlcuded by expression intention, despite no provision for this in the Act (because expressing an intention to exclude s.78 indicates an intention not to annex the covenant to the land)=


Royal Bank of Scotland v Etridge

Mortgage lender is put on notice of undue influence of one co-mortgagor over another, whenever the relationship between the co-mortgagors is non-commercial |

S


Samuel v Jarrah Timber

An option to purchase in favour of a mortgagee is void if contained in a mortgage agreement (but see Reeves v Lisle)=


Shiloh Spinners v Harding

A right of re-entry is an equitable right, and one that does not require registration as a land charge=


Sledmore v Dalby

Proprietary estoppel creates a right to a remedy, and the remedy is discretionary [claim to a right of occupancy against elderly widow rejected, because the rememdy would be disproportionate to the hardship it would create]=


Smith and Snipes Hall Farm v River Douglas Catchment Board

s.78 of LPA1925 allows a lessee to enforce a covenant made with his landlord=


Swift Investments v Combined English Stores

A covenant 'touches and concerns' the land if it affects the nature, quality, mode of user or value of the land |


W


Wheeldon v Burrows

When part of a piece of land is conveyed, a quasi-easement can be converted into an easement, provided it is continuous and apparent, and necessary for reasonable use of the land [a right to light enjoyed by one part of a property over another could become an easement when part of the land was conveyed (although not on the facts of this case)]=


White v Bijou Mansions

s.56 LPA1925 does not allow third parties to enforce covenant, if covenant specifically names the convenantees only (but see Re Ecclesiastical Commissioners' Conveyance) [claimant owned land near covenantor and, although the covenant was made to his successor in title, claimant could not benefit under s.56]=


White v City of London Brewery Co

A mortgagee that takes possession is accountable to mortgagor for mismanagement [repossessed property rented with restrictions that reduced the rental value]=


Williams & Glynns Bank v Boland

Where there is 'actual occupation' is a question of fact, not of law=


Williams v Hensman

Joint tenancy may be severed by (i) action of a joint tenant on his own share; (ii) mutual agreement; (iii) mutual conduct=


Wright v MacAdam

A licence to use some piece of land can become an easement if there is a conveyance of the land subject to the licence (by s.62 LPA1925) [tenant's permission to store in coalshed could not be revoked by landlord after granting a new lease] |

Land and Property Law