Cases

Question 1

National Provincial Bank v Ainsworth 1965

Answer 1

A - Mr Ainsworth
B - Mrs Ainsworth
C - Bank

Marital relationship broke down, Mr Ainsworth moved out of the house.
Acting without knowledge of wife, borrowed money from bank. Done as part of mortgage deal: debt to bank was secured by giving the bank a legal property right (charge) over the land. Mr Ainsworth failed to repay loan - bank sought to remove Mrs Ainsworth so it could sell the house with vacant possession.
Did she have right she could assert against bank? No. Only had a personal fight against her husband, not in relation to specific piece of land.

Question 2

William & Glyn’s Bank v Boland 1981

Answer 2

A - Mr Boland
B - Mrs Boland
C - Bank

Mr Boland was registered as the sole holder of the freehold Mrs Boland had contributed some of the money used to purchase. Acting without his wife he borrowed money from the bank as part of a mortgage deal. As in the Ainsworth case when the loan was not repaid the bank sought vacant possession of the land and so attempted to remove Mrs Boland.
Mrs Boland had an equitable property right as Mr Boland held his freehold on trust for both of them. Mrs Boland was able to satisfy the acquisition question as she had made a financial contribution which gave rise to trust.The bank could not use a lack of registration defence because he was in actual occupation of the land at the time. Mrs Boland did therefore have a pre-existing equitable property right bound to the bank.

Question 3

London Bank Society v Flegg 1988

Answer 3

A1&2- Maxwell-Browns
B1&2 - Fleggs
C - Bank
The Fleggs lived with the Maxwells in Bleak House. Fleggs sold own home in order to contribute to purchase price. Only Maxwells were registered as joint holders of the freehold of Bleak House. Borrowed money without Fleggs knowledge. The society sought possession after fail to repay and attempted to remove Fleggs.
Fleggs satisfies the content and acquisition questions (had equitable interest under trust and were in actual occupation) actual occupation meant the society couldn’t use lack of registration defence. Problem was that bank established different defence. Overreaching defence recognised by s2 LPA 1925. was paid to A1 & A2 two trustees of land and therefore defence can be made out

Question 4

Barclays Bank v O’Brien 1993

Answer 4

H arranged to remortgage the family home (jointly owned). H told W the loan was a bridging loan of 60k for 3 weeks. No stage did the Barclays bank explain effect of documents that W signed. W sought to set aside the transaction against the Barclays bank.
If bank had notice of the risk of UI or misrep then the lender takes subject to the right to set aside. Nature of transaction here meant bank should have been ‘put on inquiry’
Should take reasonable steps to ensure W is aware of the risks and has legal advice
Successfully argued mortgage be set aside against her share in the home

Question 5

RBS v Etridge 2001

Answer 5

STAGE 1: Proof of UI
Either actual UI or presumed
1) trust & confidence regarding financial affairs
2) mortgage is not readily explicable as an exercise of independent will

STAGE 2: notice of the bank
Lender may be subject to the mortgage being set aside if it has notice of the risk that the wife may not have exercise her own judgement. Put on inquiry where loan used solely for just one of the parties

STAGE 3: steps bank should take
Not aiming to discover whether wife has been wronged
Rather aim to minimise the risk that wrong has been committed
Reasonable steps to bring home…the risks
>impartial legal advice given in good time
> furnish legal rep with relevant info
> given in environment free of the influence

Question 6

CIBC v Pitt 1994

Answer 6

Mr Pitt wished to obtain a loan secured on the home he jointly owned with his wife. He told the bank that he wanted to buy a second home but in fact he used the loan to invest in the stock market. Mrs Pitt was reluctant to agree to the mortgage but Mr Pitt wore down by constantly badgering she finally agreed. When the investments failed and he could not pay the loan CIBC wanted to enforce the mortgage. Mrs Pitt argued the mortgage should be set aside against her interest in the home because of the UI of husband. House of Lords refused because the circumstances were as such that the bank could not be expected to have notice of the husbands behaviour.

Question 7

Cheltenham & Gloucester BD v Norgan 1996

Evans LJ

Answer 7

What constitutes a reasonable period administration of Justice Act 1970?
Evans LJ suggests factors include:
What the borrower can reasonably afford to pay now and in the future?
Is this a temporary difficult or long term issue?
The reason for arrears and how much of the term remains
General terms and impact on lender etc

Question 8

Unity of Possession

Answer 8

Co-ownership
Parties are entitled to possession of the whole of the land. No co owner can point to part of the land and claim that it represents his or her ‘share’ of the land
Distinguishes co ownership from ‘successive ownership’ in which possession is enjoyed consecutively

Question 9

Types of Co-Ownership

Answer 9

1. Joint tenancy

2. Tenants in common

Question 10

Hammersmith LBC v Monk 1992

Answer 10

A transfer of land to two or more persons jointly operates so as to make them vis-a-vis the outside world, one single owner

Question 11

Key practical difference between joint tenancy and tenancy in common

Answer 11

The operation of survivorship

Question 12

The four unities

Answer 12

Unity of possession
Unity of interest
Unity of title
Unity of time

Question 13

Severance… co ownership

Answer 13

The process of separating off the share of a joint tenant so that the concurrent ownership will continue but the right of survivorship will no longer apply. The parties will hold separate shares and become tenants in common.

Question 14

Goodman v Gallant 1986

Answer 14

If express declaration that property will be held in equity as JT or TiC this is conclusive

Question 15

Can severance operate by will?

Answer 15

No, has to take place during joint tenants lifetime

Question 16

4 methods of severance

Answer 16

Williams v Hensman 1861 methods of severance:

1. An act of joint tenant operating on his share (alone)
2. Mutual agreement (all agree)
3. Severance by a course of dealing (all agree)

The fourth method is statutory and enables severance through written notice (alone)

Question 17

Williams v Hensman 1861

Answer 17

Methods of severance

1. Joint tenant operating share
2. Mutual agreement
3. Severance through course of dealing

Question 18

Characteristics of easements

Answer 18

A dominant and servient land
Separate ownership/occupation of dominant & servient land
Accommodation (benefit) of the dominant land
Acceptable subject matter of grant

Question 19

Re Ellenborough Park 1956

Answer 19

Summarized the four essential characteristics of an easement:

(1) there must be two distinct areas of land - dominant and servient land
(2) the land must be owned by different people
(3) the easement must accommodate the dominant land and
(4) the right must be capable of forming the subject matter of a grant

Question 20

Harris v Flower 1904

Answer 20

Where the dominant owner already owns or subsequently acquires additional land adjacent to the dominant land, he or she cannot claim the benefit of the right for that additional land.
The rationale for the rule lies in the simple fact the original terms of the grant are solely for the benefit of the dominant land
(Also, minimises the risk of excessive use of the servient land)

Question 21

Hill v Tupper 1863

Answer 21

Canal company leased land beside a canal to Mr Hill and granted him and exclusive right to put and use the boats on the canal. Mr Tupper owned a pub beside the canal and started renting out boats to be used on the canal. Mr Hill objected claiming he had an exclusive easement to use the canal in this way. The court characterised Mr Hill’s right as a personal commercial advantage rather than a property right attached to his land

Question 22

London & Blenheim Estates Ltd v Ladbrooke Retail Parks Ltd 1992

Answer 22

Ouster principle
Suggested the test is one of degree and the line crossed when the right is so extensive that the servient owner is left with no reasonable enjoyment of his or her land

Question 23

What are covenants?

Answer 23

Agreements created under seal by deed

Question 24

Tulk v Moxhay 1848

Answer 24

In 1808, Tulk had sold part of land that he owned in what is now Leicester Square to Elms, who convenanted with Tulk that he would ‘at all times thereafter at his own cost keep and maintain the piece of ground in sufficient and proper repair, and in an open state, uncovered with any buildings, in neat and ornamental order.’ The land sold to Elms came into the ownership of Moxhay. Although moxhay knew of the covenant, he made plans to develop the land. Tulk was able to stop these plans when the court granted him an injunction against Moxhay.

Question 25

Content requirements of an enforceable freehold covenant may be summarised as:

From Tulk v Moxhay

Answer 25

The burden of the covenant must relate to the servient land and must be intended to run with the land in the sense that the covenant is not solely personal;

There must be adjoining or dominant land that is capable of benefitting from the covenant affecting the servient land

The covenant must be negative in nature (prevent rather than obligation to do)

Question 26

Rhône v Stephens 1994

Answer 26

Lord Templeman drew a distinction between negative and positive covenants -
Positive imposes an additional obligation

Question 27

Elements of Tulk v Moxhay

Answer 27

1. Covenant must touch or relate to the land - it’s not a personal obligation
2. Dominant land that benefits from the covenant
3. Must be negative

Question 28

Pye (Oxford) ltd v Graham

Answer 28

Pye owed land to develop in the future. In the meantime, they gave Mr Graham the neighbouring farmer a grazing licence. When the licence expired G tried to renew it but P refused. G’s further attempts to renew were ignored. So, G continued to use the land as his own - padlocking gate, maintaining hedges and land.
After some years, p discovered g’s use and tried to evict him but the HOL held G had become the freehold owner as a result of adverse possession.

Question 29

What is adverse possession?

Answer 29

Requires 
Factual possession (a sufficient degree of exclusive physical control must depend on the circumstances, nature of the land, dealing with the land as occupying owner Powell v McFarlane)
An intention to possess (not necessarily an intent to own)

Question 30

Powell v McFarlane

Answer 30

Using land as an occupying owner (adverse possession)

Question 31

An intention to possess

Answer 31

Not necessarily to own

Intent to exclude the world at large including the owner… as far as possible Powell v McFarlane

Question 32

Proving an Intention to Possess

Answer 32

Actions speak louder than words! - quality of acts over comments by squatter

I.e locking gates, fencing, excluding world at large (McFarlane)

Question 33

Effect of AP

Answer 33

Gives rise to an independent title based on possession
This reflects relativity of title and possessory principle of English Law

Not very secure unless some rule that formalises the title

Good evidence of ownership where there is no documentation

Question 34

Best v Chief Land Registrar 2015

Answer 34

Court of appeal said that the claim could proceed to establish adverse possession. Court of Appeal said a peep claim can proceed despite the claimant seeking to rely on illegality. Parliament did not intend to throw a spanner in the works of LRA 2002. The policy of facilitating land use outweighs the policy of legal aid sentencing and punishment of offenders act 2012.

Question 35

Green v Ireland 2011

Answer 35

‘String’ of emails which contained typed signatures of both parties could create a contract under section 2

Question 36

Street v Mountford 1985

Lord Templeman

Answer 36

MOST IMPORTANT LEASE CASE.

Mrs mountford had a right to exclusive possession of the land, and could be seen as free to ‘exercise the rights of an owner of land albeit temporarily and subject to certain restrictions’

Question 37

Does a lease give someone rights of ownership?

Answer 37

Street v Mountford

YES IT DOES as a lease is a legal estate in land

Question 38

Street v Mountford 1985

Lord Templeman

Answer 38

MOST IMPORTANT LEASE CASE.

Mrs mountford had a right to exclusive possession of the land, and could be seen as free to ‘exercise the rights of an owner of land albeit temporarily and subject to certain restrictions’

Question 39

Does a lease give someone rights of ownership?

Answer 39

Street v Mountford

YES IT DOES as a lease is a legal estate in land

Question 40

Elitestone Ltd v Morris 1997

Answer 40

Bungalow - chattel or fixture?
Two key factors
1. Degree to which bungalow was attached or integrated to land
2. Purpose of attachment

Question 41

Tower Hamlets v Bromley

Answer 41

Statue - fixture or chattel!
Applying Elitestone, the statue had not become part and parcel of the land, could be removed without damage wasn’t dependant on location
Remained chattel

Question 42

Regency Villas v Diamond Resorts

Answer 42

Elitestone doubted that recreation could command necessary utility that lies at the heart of accommodating dominant land however …
this argument may not be accepted now bc spas, swimming pools etc in health conscious times like today could mean recreation and enjoyment suffice

Question 43

Antoniades v Villiers 1990

Answer 43

Rented out to a couple, moved in together and signed identical but separate documents. Contained clause - licensor shall be entitled at any time to use rooms together with licensee and permit other persons to use the rooms.
Antoniades argued neither had exclusive possession - they had to share with eachother and potentially others.
HoL rejected this: 1st no difference that they signed sep docs, was part of single transaction and they were a couple
2nd term allowing landlord to insert further occupiers was not a genuine part of the agreement!

Question 44

Generally applicable sham doctrine

Answer 44

Allows court to disregard apparent contractual terms if those terms were in fact intended by A and B ‘to give to 3rd parties or to the court the appearance of creating between the parties legal rights and obligations DIFFERENT from the ACTUAL legal rights and obligations

Question 45

Exclusive possession and multiple occupation … case

Answer 45

AG securities and Vaughan 1990

Question 46

AG securities v Vaughan

Facts of the case

Answer 46

AG securities had a long lease of the London flat. It was rented out for students one of whom was Mr Vaughan. The four not moved in as a group instead each one had moved in as and when a former occupier left and the room became available. The four occupiers acting together argued that they held a lease and so qualified for statutory protection which would prevent AG securities from ending the lease. HOL rejected the argument. It was clear that the arrangement between the occupiers and the landlord was designed to provide accommodation for the shifting population of individuals. It therefore could not be said that anyCurrent set of occupiers had a right to exclusive possession

Question 47

AG Securities v Vaughan

Further point (JT)

Answer 47

In any case where two or more occupiers attempt to establish a joint lease it is necessary to show that they acquired their right to exclusive possession as joint tenants rather than tenants in common