Cases Flashcards
Williams v Hensman (1861)
Informal Notice of Severance
Three factors, considered in series
- Act of operating on your own share
- Mutual agreement (not oral)
- Course of dealing
Harris v Goddard (1983)
Formal Notice of Severance
Set forth in s36(2) LPA 1925
Severance must be immediate, align with the LPA. Divorce request insufficient.
TSB Bank v Botham (1996)
Degree of Annexation - Chattel or Realty?
Is the item firmly affixed? If removed, would damage occur?
Is the item a permanent improvement to the land?
If removed, could room be used for relevant purpose?
Street v Mountford (1985)
Exclusive possession is the right to exclude all persons from the land, including the landlord who granted the lease
Prudential Assurance v London Residuary Body (1992)
A lease can only be a lease if it has a fixed/certain term.
If you need to have flexibility for a potential issue (e.g. road widening), insert a break clause.
Moule v Garrett (1872)
Indemnity covenant - common law rule
If the original tenant is sued for breach of REAL COVENANT, he can claim indemnity directly from assignee in whom lease was vested at the time of breach
P & A Swift Investments v Combined English Stores Group plc (1989)
Test for a real covenant
- the covenant must benefit only the reversioner for the time being, so if separated from the reversion it ceases to be a benefit;
- the covenant must affect the nature, quality, mode of user or value of the land of the reversioner; and
- it must not be personal.
Tulk v Moxhay (1848)
PRE1996
Even though a sub-tenant and head landlord have no privity of contract or estate, if a sub-tenant knows about a restrictive covenant in the headlease, he is bound by it.
Baron Bernstein v Skyviews (1978)
CF
Bocardo v Star Energy UK (2010)
Skyviews: land owner has rights in airspace as needed for ordinary enjoyment
Star Energy: land owner has rights in subsoil. underground petroleum belongs to the Crown
Elitestone Ltd v Morris (1997)
Bungalow resting on blocks was considered a fixture to the land because it could only be removed via demolition.
Aslan v Murphy (No 1) (1989)
Retention of keys by landlord doesn’t preclude occupier from exclusive possession.
If keys are needed for services, that could preclude.
Appal v Parncliffe Investments (1964)
Provision of services by owner was inconsistent with exclusive possession
Drilling Fluids Ltd v Louisville Investment Ltd [1986]
When can landlord withhold consent to alienate property?
Landlord cannot refuse consent based on grounds that have nothing to do with L/T relationship
Landlord doesn’t have to prove their conclusions to refuse consent were justified as long as they’re reasonable
It may be reasonable for L to refuse consent because they don’t like proposed use of the land
If there’s a disproportionate benefit/detriment between L and T refusal of consent could be unreasonable
it’s a question of fact depending on all circumstances whether or not the landlord has been unreasonable. Onus of showing they acted reasonably is on the landlord.
Goodman v Gallant [1986]
If a joint tenancy is severed, co-owners get equal shares at severance. The extent of parties relative contributions is irrelevant.
Lace v Chantler (or Chandler) [1944]
Leases must be for an ascertainable term. A lease granted for the “duration of the war” is not a legal estate because it isn’t for a fixed term.
Spencer’s Case [1583]
Assignee of lease assumes covenants provided (1) there is privity of estate between assignee and person enforcing and (2) covenant touches/concerns the land
Expert Clothing Service and Sale Ltd v Hillgate House Ltd [1985]
Try to remediate first!
A breach will only be treated as being irremediable where the consequences of that breach cannot be put right or retrieved for the future.
Rugby School v Tannahill [1935]
Just because tenant ceased criminal act did not mean breach was remedied; immoral use of land may be irremediable
Scala House & District Property Co Ltd v Forbes [1974]
Subletting without permission is a once-and-for-all issue that can’t be remedied
Central Estates (Belgravia) Ltd v Woolgar No 2. [1972]
If a landlord, knowing of a tenant’s breach of covenant, demands rent (even through a clerical error) they waive the right to forfeit the lease
Duppa v Mayo (1669)
To forfeit a lease for non payment of rent, landlord must make formal demand at the premises, asking for exact sum to be paid before sunset
Ashworth Frazer Ltd v Gloucester CC [2001]
it is reasonable for the landlord to withhold consent to an assignment that would necessarily involve a breach of covenant, but also withholding consent may be reasonable where the landlord apprehends that the proposed assignee intends to use the premises for a purpose objectionable to the landlord’s estate
Burgess v Rawnsley [1975]
They had an oral agreement to sever the joint tenancy. Denning asserted that a common intention had been formed through the parties ‘course of dealings’ which in turn severed the joint tenancy. The other judges concurred.
Mortgage Corporation v Shaire [2000]
Shaire’s husband took out a mortgage and forged her signature. When he died, bank wanted to have the house sold. S.15 TOLATA posed that the interests of the mortgagee were just one of four factors to be considered, and shouldn’t be weighted any more heavily than the interests of the children living in the home.
Berkley v Poulett (1977) CF D’Eyncourt v Gregory (1866)
Berkley: Objects were chattels because it was clear they had been moved and they weren’t affixed to the land
D’Eyncourt: Objects were fixtures because they were attached to walls with no evidence of having been moved
Birmingham Citizens Permanent Building Society v Caunt [1962]
The right for a mortgagee to possess the land from the moment the mortgage is created can be restricted by a term in the morgage deed that possession will not be taken whilst the mortgagor makes regular payments
Cuckmere Co Ltd v Mutual Finance Ltd (1971)
Mortgagee’s Duty
Entitled to exercise power of sale not as trustee but for its own purposes
Can accept best bid at poorly attended auction
Can self preference
Must act in good faith
Seen as neighbour to mortgagor
Must seek true market value of property
Savva v Houssein (1997)
Leasehold
Tenants fix property issues landlord should’ve fixed
Landlord claims for breach of lease
Courts rule in favor of tenants as beach was capable of remedy
Thamesmead v Allotey (1998)
Freehold covenant
Confirms Halsall v Brizell
If successor in title doesn’t want benefit, they don’t assume corresponding burden
Tulk v Moxhay (1848)
Freehold covenant - Burden
Only situation where burden can run with land in equity
- Covenant is restrictive
- Covenantee owns land at the time of creation of covenant
- Burden of covenant was intended to run with the land
- Owner of servient tenement has notice
Austerberry v Corporation of Oldham (1881)
Freehold covenant
In common law, burden (whether positive or negative) cannot run with servient land
Burden remains personal to original covenantor
Smith & Snipes Hill Farm v River Douglas (1949)
Freehold covenant - Touch & Concern
Touch and concern the land means the covenant is for the benefit of the covenantee’s land and not for personal advantage
Rogers v Hosegood (1900)
Freehold covenant - Express annexation
If there is express wording that covenant should be annexed/become part of the land, as long as it is for the benefit of that land and land is named, that is acceptable
Federated Homes v Mill Lodge (1980)
cf
Crest Nicholson v McAllister (2004)
cf
Roake v Chadha (1983)
Freehold covenant - Statutory annexation
s.78 LPA 1925 = if covenant touches and concerns the land, and land is sold, covenant passes to successors
Federated Homes upholds s.78
Crest Nicholson upholds and says you must identify dominant tenement
Roake says contrary intention can rebut s.78
Colls v Home & Colonial Stores Ltd (1904)
Easement - right to light
Legal right to light must exist in relation to defined aperture
Once established, must show that the right has been infringed. This means the light is below level required for ordinary purposes of inhabitancy or business.
Colls v Home & Colonial Stores Ltd (1904)
Easement - right to light
Legal right to light must exist in relation to defined aperture
Once established, must show that the right has been infringed. This means the light is below level required for ordinary purposes of inhabitancy or business.Mo
Moncrieff v Jamieson (2007)
Easement - right to storage - persuasive obiter
Test is not whether servient owner is left without reasonable use of his land [Batchelor], but whether he retains possession and control of servient land
Wright v MacAdam (1949)
cf
Grigsby v Melville (1972)
Easement - right to storage
Wright: Storing coal in shed on landlord’s land is easement
Grigsby: D stored items in cellar at C’s house - not an easement as cellar belonged to C and D was neighbour
Issue of fact and degree
Re Ellenborough Park (1956)
Easement test
1.There must be a dominant and servient tenement
2. The easement must accommodate the dominant tenement
3. Both tenements can’t be owned/occupied by the same person
4. The easement must be capable of forming the subject matter of the grant
4a. Must be definite (issue for parking, storage)
4b. Needs to be within general nature of easements - can’t create a duty
4c. Must have capable grantor/grantee
Wheeldon v Burrows (1869)
Implied easement
Sale of part of land and whether quasi-easements pass
- Must be continuous and apparent
- Must be necessary to reasonable enjoyment of land
- Must be in use at time of sale
OK for grant, harder for reservation. In that case, look for necessity.
Wong v Beaumont Property Trust (1965)
Implied easement
Law will imply grant or reservation of easement to give effect to common intention of parties with reference to manner or purpose of the land
Must be definite and particular use
Ward v Kirkland (1967)
Easement
Continuous and apparent use is seen on inspection and is neither transitory nor intermittent
London & Blenheim v Ladbroke Retail (1994)
cf
Batchelor v Marlow (2001)
Easement - right to park
London & Blenheim: right to park recognised
Batchelor: right to park can’t be uncertain/vague/extra
Bristol & West Building Society v Ellis (1996)
Mortgagee - possession
Repayment to mortgagee has to be under a reasonable plan.
Look to amount of repayment, length of time required, evidence that debt will be discharged
Medforth v Blake (1999)
Receivership
Receiver has a duty to try to pay interest and principle of secured debt and must manage business with due diligence.
Halsall v Brizell (1957)
Freehold covenant
Under common law, burden sticks with OG covenantor
Exception: doctrine of mutual benefit and burden. Those who wish to take advantage of benefit to land must also comply with corresponding obligation
Why is registered land important?
Mirror principle: register reflects reality
Insurance principle: claim $ if title is deficient
Curtain principle: no sensitive info, just the facts
Wright v MacAdam (1949)
Implied easement
s.62 LPA 1925 has legislative magic. This case confirms it. What is a license can be updated to easement.
- There must be a conveyance - s.205 LPA
- Must have diversity of ownership/occupation
- Only applies to rights capable of existing as easements
Hill v Tupper (1863)
Easement
Where a right claimed facilitates business use of the land, the right may not constitute an easement. Question of fact/degree.
Race v Ward (1855)
Easement
Anything that involves taking away part of the land (except water) can’t be an easement
Palk v Mortgage Services Funding Plc (1993)
Mortgagee - sale v possession
s.91(2) LPA - court can order a sale
If mortgagor wants to sell property to repay mortgage debt that is OK under s.91 LPA
Cheltenham & Gloucester v Krausz (1997)
Mortgagee - sale v possession
s.91(2) LPA - court can order a sale
If mortgagor wants to sell property, but property has negative equity and mortgagor can’t make up gap in debt owed, court may not suspend possession order for sale
China and South Sea Bank v Tan Soon Gin (1990)
Mortgagee duty
No duty to exercise power of sale at any particular time, regardless of whether it occasions loss or damage to mortgagor
Silven Properties Ltd v Royal Bank of Scotland (2004)
Mortgagee duty
Limit of duty is to seek best price (Cuckmere)
There is no duty to improve the property or increase the price
Tse Kwong Lam v Wong Chit Sen (1983)
Mortgagee duty
Mortgagee may sell to affiliate. They cannot sell to themself (Farrar)
Farrar v Farrars Ltd (1888)
Mortgagee duty
Mortgagee cannot sell to himself. They may sell to an affiliate company (Tse Kwong Lam)
TSB Bank v Marshall (1998)
Co-ownership/TOLATA
s14 request for sale - court ruled interests of mortgagee or chargee could take priority over other interests
s15 has inclusive, not exclusive, list of factors to consider
Re Evers (1980)
Co-ownership/TOLATA
Family home purchased, couple broke up
Man wanted to sell, court said purpose of acquiring the house (kids living there) could still be fulfilled
Stack v Dowden (2007)
Co-ownership
Example of circumstances where court decided that a presumed JT was rebutted
What are the four unities
Time
Interest
Title
Possession
Four Maids Ltd v Dudley Marshall (1957)
Mortgage - s.87 LPA 1925
Mortgagee may take possession of mortgaged property as soon as the ink is dry
Cheltenham & Gloucester Building Society v Norgan (1996)
Mortgagee - possession - s.36/s.8 AJA
s.36 = court can stay proceedings if mortgagor can pay within reasonable period
Norgan = reasonable period is time left in mortgage term. Depends on reason for arrears and whether difficulty was temporary or long term
Lloyd v Banks (1868)
Unregistered title - notice
Actual notice is when purchaser actually knows of interest
Hunt v Luck (1902)
Unregistered title - notice
s199(1) LPA 1925: purchaser is deemed to have notice of everything he would’ve known had he made reasonable enquiries
Hunt: you must physically inspect land
Kingsnorth Finance v Tizard (1986)
Unregistered title - notice
Imputed notice - s.199(i)(ii)(b)
If purchaser’s agent acquires actual or constructive notice of an interest, the notice is imputed to purchaser
Midland Bank Trust Company v Green (1981)
Unregistered title - non registration of land charge
s.4 LCA 1972: if you don’t register your land charge it’s void
Midland: having actual knowledge of interest is irrelevant - the interest has to be recorded
Oak Cooperative Building Society v Blackburn (1968)
Unregistered title - name
An abbreviated name is a legitimate version of a name
Registration of fair approximation of correct name is OK
Strand Securities Ltd v Caswell (1965)
Registered title - actual occupation
Part 2 Sched 3 LRA 2002: guidance on when unregistrable interests of occupation can override
Strand: must have (1) occupation and (2) interest in property
Chhokar v Chhokar (1984)
Registered title - actual occupation
Must have degree of permanence and continuity
Temporary absences (hospital, holiday) do not destroy actual occupation
