CASES

Question 1

King v David Allen

FACTS

Answer 1

• The lessee of a cinema granted a licence to an advertising company to place adverts around the cinema for an annual fee
• The tenancy was brought to an end, causing the old tenant to breach the licence agreement and a new tenant went into occupation of the cinema
• Question: was the licence to hang up the posters enforceable against a new tenant

Question 2

King v David Allen

JUDGMENT

Answer 2

• The termination of the lease by either party would also terminate the possession of any license granted by the tenant to another
  
  • There was no existing licence which could be enforced against the new tenant
  • If the licence is contractual (such as this case) the tenant will expose himself to an action of contract if he is the one to end the lease
    
    • This meant that the original tenant was liable to the claimant in damages for breach of contract
• Contractual licenses are personal, non-proprietary rights which do not inure to the land
  
  • They do not bind successors-in-title to the land, they only bind the parties that entered into them
  • As the new tenant was not a party to the agreement, they could not have been bound by the license even if it had still existed
• You can only avail of party A because the right is in personam
  
  • If it was a property right, successors would be obligated to let David Allen put posters in the wall

Question 3

King v David Allen

RATIO

Answer 3

• Contractual licences only create personal obligations, so the advertising company would only be entitled to damages for breach of contract
• Licences do not bind successors (with the exception of personal representatives)

Question 4

National Provincial Bank v Ainsworth

FACTS

Answer 4

• A man and his family were occupants of a piece of property, though the defendant was the only registered proprietor
• The property was used to secure an overdraft for his company, and NPB registered a charge against the house
• Prior to this arrangement with the bank, the man abandoned the property and his family, but allowed his wife to continue living there rent free as part of the separation agreement
• The bank sought repossession of the property, which the wife resisted
• The wife was in actual occupation of the property, which constitutes as an ‘overriding’ interest under Sch3 Land Registration Act 2002
• Issue: could the bank claim possession of the house despite the continued occupation of the defendant’s family?

Question 5

National Provincial Bank v Ainsworth

JUDGMENT

Answer 5

• The HoL held that the wife had no overriding interest, and so the bank could take possession of the property
• The necessary interest must be proprietary
  
  • The separation agreement permitting the wife to remain in the house was a mere licence, and licenses are a personal, non-proprietary right
  • As the wife did not have a proprietary interest in the house, she had no interest which could amount to an overriding interest, and thus she cannot resist possession

Question 6

National Provincial Bank v Ainsworth

RATIO

Answer 6

• An interest in a property must be proprietary, a mere license will not suffice
• An implied contractual right in property is not sufficient to create a property right

Question 7

Manchester Airport v Dutton

FACTS

Answer 7

• Manchester Airport (claimants) wished to construct a second runway
• The defendants (a group of environmental protestors) objected to the works and entered neighbouring land owned by National Trust
  
  • The group set up camp without a licence or consent in order to obstruct the works
• Later, the National Trust granted the Airport a licence to enter the land and begin the works
• The Airport then applied for and obtained an order for possession of the land
• The Defendants appealed against the grant of the order and the dispute went to the Court of Appeal
• The Defendants argued that the order would amount to ejectment
  
  • a Tenant under a lease may sue in trespass, however a licensee cannot do so
  • They argued that the rant of an order for possession was only available to someone with a title or estate in land, which the Airport lacked

Question 8

Manchester Airport v Dutton

JUDGMENT

Answer 8

• The appeal was dismissed and the order upheld

LAWS LJ

• Just because ejectment was limited to parties with a title or interest to land does not prevent them granting possession to a mere licensee, if that was necessary in order to give effect to the licensee’s rights under his contract with the licensor
• It made no difference whether the Airport had actually occupied the land before the protestors

CHADWICK LJ

• “The plaintiff must succeed by the strength of his title, not on the weakness (or lack) of any title in the defendant”

Question 9

Manchester Airport v Dutton

RATIO

Answer 9

• Relief is given to uphold the rights of occupation as given by contract

Question 10

Lord Bernstein v Skyview

FACTS

Answer 10

• D took aerial photos of P’s house. P argued that doing that means that D had trespassed in the plaintiff’s airspace
• D admitted to taking the photo, but claimed that they had taken it whilst flying over an adjoining property
• D also argued that if they had flown over P’s land, then they had P’s implied permission
• Question: does the owner of the land have property over all the airspace?

Question 11

Lord Bernstein v Skyview

JUDGMENT

Answer 11

GRIFFITHS J

• The plane had at some point flown over the plaintiff’s land, even if the photograph might have been taken whilst over neighbouring land
  
  • The defendants did not have the plaintiff’s implied permission
• “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height”
• If the Latin maxim (Cujus est solum, ejus est usque as coelum et ad inferos – whoever owns the soil it is their sup to heaven and down to hell) were applied literally, it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden
  
  • “We should restrict the rights of an owner in the airspace above their land to such a height as would be necessary for the ordinary use and enjoyment of their land and the structures upon it, and to declare that above that height they had no greater rights in the airspace than any other member of the public”
• Even if there was an action for trespass, this would not provide a remedy in relation to the photos as there was no law against taking a photograph
  
  • The taking of a photograph cannot turn an act which was not trespass into trespass

Question 12

Lord Bernstein v Skyview

RATIO

Answer 12

• The rights of a land owner over their land extend only to a height necessary for the ordinary use and enjoyment of their land

Question 13

Bocardo SA v Star Energy

FACTS

Answer 13

• Bocardo claimed Star Energy committed trespass, and that a licence under the Petroleum Act was no defence
  
  • Star Energy had a licence to search for, bore and get petroleum under the Act. It got this licence in 1999, though it was originally issued by the Secretary of State for Energy in 1980 to Conoco
• Star Energy’s predecessors drilled three diagonal wells, with pipelines doing down below the land Bocardo owned
• Star Energy had never sought Bocardo’s permission
• Question: can you own the space underneath the land you own; can you have the right to privacy in airspace?

Question 14

Bocardo SA v Star Energy

JUDGMENT

Answer 14

• Bocardo did own the ground, and was entitled to claim for trespass by the wells
• SE had no defence in trespass under the Act. It was irrelevant if the landowner did not make use of the ground

Question 15

Bocardo SA v Star Energy

DISSENTING JUDGMENT

Answer 15

LORD HOPE

• A landowner did own the ground beneath, including minerals, unless there was a conveyance or statute
• There has to be a logical limit, where presume and temperature to the Earth’s core made ownership so absurd as to be not worth arguing about, but the wells were not that deep

Question 16

Bocardo SA v Star Energy

RATIO

Answer 16

• A landowner owns all substrata which lie beneath their property up to an undefined depth where the notion of ownership becomes absurd
• The adequate damages would be compensation for the act of performing the operation (installing the pipes)

Question 17

Elitestone v Morris

FACTS

Answer 17

• Elitestone purchased the freehold to land on which Mr Morris’ bungalow (and 26 others) was situated
• Elitestone wished to demolish the properties on the land and redevelop the property
• Elitestone brought proceedings against all the residences, seeking possession of the land
• Mr Morris defended the action, claiming protection under the Rents Act
  
  • This Act would only protect Mr Morris if the bungalow formed part of the realty
• Elitestone argued that the bungalow was separate from the land, since it rested on its own weight on concrete pillars and thus was not physically attached to the land

Question 18

Elitestone v Morris

JUDGMENT

Answer 18

LORD LLOYD

• “A house which is constructed in such a way so as to be removable … may well remain a chattel, even though it is connected temporarily to mains services. But a house which is constructed in such a way that it cannot be removed at all … cannot have been intended to remain as a chattel”
  
  • In the latter case, the house was intended to form part of the realty

LORD CLYDE

• A distinction must be drawn between the principle of accession and the rules of removability

Question 19

Elitestone v Morris

RATIO

Answer 19

• A built structure becomes part of the land and thus real property, according to the degree of annexation and purpose
• If it cannot be removed without being destroyed, it is more than likely a fixture

Question 20

Crago v Julian

FACTS

Answer 20

• Mrs J lived in a rented flat with her husband and her children
  
  • The flat was in sole name of Mr Julian
  • The flat was rented by week from Mrs Crago
• Mr and Mrs Julian divorced. Mr Julian left Mrs Julian the flat although nothing was done to officially transfer the tenancy
  
  • They assumed that a document Mr Julian created would transfer Mr Julian’s interests in the flat to his wife
    
    • The document didn’t have the terms or the purpose
• Mrs Julian paid for the rent and upkeep of the flat. When she wanted to get housing benefits, she was receiving some difficulty because the house was not in her name
• Mr Julian was served a notice to quit the premises, but because he was not in possession, he was not entitled to any statutory protection
• Mrs Crago brought proceedings against Mrs Julian to seek possession of the flat. The trial was in favour of Mrs Crago, and Mrs Julian appealed on the grounds that the tenancy was assigned to her

Question 21

Crago v Julian

JUDGMENT

Answer 21

SIR DONALD NICHOLLS V-C

• “Nothing less than assignment at law” will transfer possession
• Both the grant and assignment of a tenancy fall within s53(1a) LPA
  
  • A grant of a tenancy is the creation of an interest in land
  • An assignment of a tenancy of land is the disposal of an interest in land
• “Interests in land cannot be created or disposed of except in writing, but a lease in possession at a market rent for up to three years can be created orally”
  
  • The statutory provisions draw a distinction between the manner in which a short lease may be created and in which it may be assigned
• Because there was no assignment in writing, the appeal was disposed of

Question 22

Crago v Julian

RATIO

Answer 22

• If one seeks to convey a legal estate in the lease, a deed is required
  
  • “To be effectual as a legal assignment, a transfer of … tenancy required to be by way of deed”

Question 23

Walsh v Lonsdale

FACTS

Answer 23

• Lonsdale (D) agreed to grant Walsh (C) the lease of a mill for seven years to be paid quarterly in arrears with a year’s rent payable in advance if demanded
• The parties did not execute a deed for the grant of the tenancy, but C moved in and paid rent quarterly in arrears
• D demanded a year’s rent in advance, which C refused to pay
• Lonsdale levied for distress at common law, seeking to seize Walsh’s chattels in lieu of payment
• Walsh sought an injunction against the distress, as well as damages for the illegal distress.
• Walsh argued that the agreement was not a valid common law lease, and that it amounted to no more than a tenancy from year to year under which payment was made quarterly, with the consequence that there was no basis for Lonsdale’s distress action
  
  • Walsh also argued that Lonsdale should have sought specific performance of the agreement to lease first

Question 24

Walsh v Lonsdale

JUDGMENT

Answer 24

LORD JESSEL

• The fusion of equity and common law meant that in any conflict, the rules of equity should prevail
• Equity looks on as done that which ought to be done
  
  • The parties were treated as having a lease enforceable in equity from the date of the agreement to grant the lease
• This lease was held under the same terms and the court ordered specific performance
• “The tenant holds … under the same terms in equity as though the lease had been granted … He cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted”

Question 25

Doctrine of Walsh v Lonsdale

Answer 25

• Equity is regarded as done that which ought to be done
  
  • Equity can create an equitable equivalent of a formally defective but otherwise legal lease
• The doctrine will only operate where the contract underlying the defective lease complies with the LP(MP)A
  
  • In writing
  • Contains all express terms
  • Signed by or on behalf of all the parties
  • Provides consideration
  • Can be specifically enforceable

Question 26

Zarb v Parry

FACTS

Answer 26

• The Zarb’s lived in a house with a large garden which they acquired from Mr Desmond Little
  
  • Mr Little had sold a portion of the garden (the Strip) to Mr and Mrs Ceen, who lived at and owned the adjoining property, which was owned by the Parry’s at the time of the case
  • The purchase was recorded by a memorandum endorsed on the deed of gift by which Mr Little acquired Daisymore, and another document recording the transfer of land
• The Zarb’s and the Parry’s disputed about the northern boundary, and in July 2007 the Zarb’s sought to take the Strip by force

Question 27

Zarb v Parry

JUDGMENT

Answer 27

LJ ARDEN

• A claimant must act “promptly” and apply for registration as soon as they learn that they are not the paper owner
• Paragraph 5(4) makes the unreasonable belief of the adverse possessor in the last 10 years of his possession prior to the application for registration a potentially disqualifying factor, even though this belief started out as reasonable but became unreasonable as a result of the circumstances
  
  • The paper owner will have a chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years
• As soon as the adverse possessor learns facts which might make their belief in their ownership unreasonable, they must take steps to secure registration as proprietor
• The trespasser will lose their right to be registered as soon as their belief in their ownership becomes unreasonable, even if they had enjoyed more than 10 years of AP

THE MASTER OF THE ROLLS; NEUBERGER

• It would not be good enough to establish a reasonable belief for any 10 years out of the period of adverse possession, it must be the last 10 years

Question 28

Zarb v Parry

RATIO

Answer 28

• The belief had to subsist, and be reasonable, throughout the last 10 years of the period of adverse possession
• The paper owner of the land may dispossess the squatter before the expiry of the limitation period to defeat their claim
  
  • This can be done through eviction, taking back possession, or by moving a boundary fence

Question 29

R (Best) Chief Land Registrar

FACTS

Answer 29

• Mr Best saw an empty property (he was told that the owner had died and the son had not been seen for years) and did some repairs on it with the intention of making it his permanent residence
• He treated the house as his own; there had been no disputes about his possession of the property, but he occupied it without any consent
• Mr Best sought to register title through adverse possession in November 2012, the application being on the basis of the 10 years required by sch6 para1 LRA 2002
• The CLR decided that the application would be cancelled on the basis of s144 of the Legal Aid Sentencing and Punishment of Offenders Act, which prevented Mr Best from relying on any period of adverse possession which involved a criminal offence to establish the basis for an application for registration as the proprietor

Question 30

R (Best) v Chief Land Registrar

RATIO

Answer 30

• Adverse possession can be based on conduct which discloses a criminal offence contrary to s144 LASPOA

Question 31

Williams & Glyn’s Bank v Boland

FACTS

Answer 31

• Mr Boland was the sole registered proprietor of the matrimonial home
  
  • Mrs Boland had made substantial contributions to the purchase price and mortgage payments entitling her to a beneficial interest in the house
• Mr Boland mortgaged the house and defaulted on payments
• The bank sought possession of the property. Mrs Boland claimed an overriding interest under s70(1g) LRA based on her beneficial interest which was protected by her actual occupation of the house
• The bank argued that the wife’s occupation was not inconsistent with the title offered and that an interest could not be both a minor interest and an overriding interest

Question 32

Williams & Glyn’s Bank v Boland

JUGMENT

Answer 32

• The wife’s beneficial interest was overriding by virtue of her actual occupation. The bank’s action for possession was therefore unsuccessful
• Actual occupation: “are ordinary words of plain English, and should, in my opinion, be interpreted as such”
  
  • Does not require anything but physical presence
• The view that the husband’s occupation precluded the wife’s was wrong; similarly, that her occupation was “a shadow of her husband’s”
• Mrs Boland’s right counted as a property right to which the bank had no defence
• Equitable interests of a spouse in actual occupation of a matrimonial home under a trust for sale are capable of being recognised as overriding interests protected by s70(1g) LRA
  
  • This will override that of a legal charge by a legal owner
• Banks ought to make more careful enquiries into occupation

Question 33

Williams & Glyn’s Bank v Boland

RATIO

Answer 33

• The rights of a spouse under a trust for sale are capable of recognition, albeit with difficulty, as overriding interests

Question 34

Abbey NBS v Cann

FACTS

Answer 34

• George Cann applied for a mortgage from a building society to buy a house
  
  • Unknown to the building society, his mother (Mrs Cann) had contributed to the purchase price
• The building society advanced the mortgage loan before the property was transferred to the defendant
• 25 minutes before completion, the defendant’s mother moved into the address
• When the defendant defaulted on his mortgage, his mother claimed an overriding interest
• The defendants appealed against the granting of a possession order in the building society’s favour, and the appeal reached the HoL
• S70(1g) LRA provides that an interest of a person in actual occupation may override registered dispositions
  
  • The mother claimed she had such an interest due to having contributed to the purchase price. Consequently, if she was also in actual occupation before the legal charge took effect she would have an overriding interest that would take priority over the mortgage and thus not be evicted.

Question 35

Abbey NBS v Cann

JUDGMENT

Answer 35

LORD OLIVER

• The occupier’s interest had to arise before the creation of the legal charge if it was to override it
• When a buyer buts a property with a mortgage, the entire process is one indivisible transaction
  
  • Moving furniture in 25 minutes before the legal transfer of the property was not enough for actual occupation as this requires some degree of performance
  • “A prospective tenant or purchaser who is allowed to go into a property in order to plan decorations or measure for furnishings would not, in ordinary parlance, be said to be occupying it”
• Mrs Cann’s interest did not override the legal mortgage
  
  • “Acts of this preparatory character carried out by courtesy of the vendor prior to completion [cannot] constitute ‘actual occupation’ for the purposes of section 70(1g)”

LORD JAUNCEY

• It was “unnecessary to consider whether or not Mrs Cann was aware that George Cann would require to borrow money in order to finance the purchase” of the new home

Question 36

Abbey NBS v Cann

RATIO

Answer 36

• Actual occupation must have some degree of permanence or continuity; acts of a preparatory nature carried out by the vendor are not enough

Question 37

Link Lending v Bustard

FACTS

Answer 37

• Mr Bustard was sectioned under s3 of the Mental Health Act 1983, and therefore could not continuously live at her house, of which she was the registered proprietor
  
  • She visited her house weekly, but under supervision
• A third partly fraudulently had Mrs Bustard’s house transferred to him, mortgaged it and defaulted on the payments
  
  • The bank sought repossession of the house

#

Question 38

Link Lending v Bustard

JUDGMENT

Answer 38

MUMMERY LJ

• Bustard was in actual occupation because of her persistent intention to return home, shown by the regular visits to the property
• “It is clear from citations that Ms Bustard’s is not a case of a ‘mere fleeting presence,’ or in a case, like Cann, of acts preparatory to the assumption of actual occupation”
• Distinguished the case from Stockholm, which involved a Saudi princess living with her mother in Saudi Arabia and owning a house in London, where there was furniture and clothing and caretaking arrangements in place, but where she had not lived for more than a year
  
  • The distinguishing feature is in the psychiatric problems of the person claiming actual occupation

Question 39

Link Lending v Bustard

RATIO

Answer 39

• An intention to return home, from fraud-induced absence, of the rightful owner can count as ‘actual occupation’ for the purposes of overriding interests which bind new owners and lending

Question 40

Chaudhary v Yavuz

FACTS

Answer 40

• D purchased an estate which had on it a metal staircase which provided access to C’s adjoining land
• The right of access was neither registered nor noted in the defendant’s contract of purchase
• D later removed the staircase
  
  • Cloud C claim that his right of access had been infringed upon?

Question 41

Chaudhary v Yavus

JUDGMENT

Answer 41

WARD, LLOYD, KITCHIN LJJ

• It would undermine the registration system if the right was allowed to bind a purchaser contrary to the express wording of s29 LRA
• C could not be said to have been in actual occupation of the staircase, rendering p2 Sch3 irrelevant
  
  • C failed to execute a formal easement permitting the use of the external staircase. D did not register a caution

Question 42

Chaudhary v Yavuz

RATIO

Answer 42

• The use of the staircase did not amount to actual occupation of any part of the staircase which could give C the status of an overriding interest

Question 43

London Building Soc v Flegg

FACTS

Answer 43

• In 1977, Mr and Mrs Flegg sold their home and used the £18,000 they got to buy a new home, Bleak House
• Their daughter and her husband, Mrs and Mr Maxwell-Brown, also chose the house
  
  • They put in the balance to buy (£16,000) by taking out a mortgage loan which they would pay back.
• They all intended to live in the house
• The registered owners and borrowers were the Maxwell-Browns, despite their solicitor advising all four of them be registered
• The law means Flegg’s has an equitable property right, stake or share from their contributions which the Maxwell-Brown’s
• The Maxwell-Brown’s had some money trouble and remortgaged with City of London Building Society to raise £37,500 without the Fleggs’ consent
  
  • The Fleggs were suspicious and entered a caution against dealings on the Land Registry
• The borrowers defaulted and the building society sought possession

Question 44

London Builing Soc v Flegg

JUDGMENT

Answer 44

• The building society’s charge took priority, and could use the overreaching defence against the Fleggs’ pre-existing trust right
• Although under s70 LRA people with actual occupation may have an overriding interests that would take priority over a third party, this does not happen if the purchase money is paid to two or more trustees or a trust corporation
  
  • If this happens, under s2(ii) LPA, the interests of the beneficiaries will be overreached and will attach to the purchase price, not the property
• The Fleggs’ rights in the property had been overreached, and thus their rights attached to the property’s sale value

LORD OLIVER

• There are risks to financial institutions of unsuspected hazards should they be bound by unregistered rights

LORD TEMPLEMAN

• “The only protection of the beneficiaries is that capital money must be paid to at least two trustees or a trust corporation”

Question 45

London Building Soc v Flegg

RATIO

Answer 45

• Overriding interests and overreaching interests have priority

Question 46

William v Hensman

FACTS

Answer 46

• A fund of money had been bequeathed by a mother on trust for 8 children to be invested in order to create an income that would then be payable to her children on her death
• The children consented to the fund being invested in this way, despite the fact that they were legally minors
• At one point, one of the children had sums advanced to them alone
• The other children covenanted not to require the trustee to make up the shortfall to them, and indemnified the trustee against the claims, for damage to their interests or other expenses incurred as a result of the advance

Question 47

William v Hensman

JUDGMENT

Answer 47

• Because all the parties had agreed to treat their interest as a tenancy in common, the joint tenancy could be severed in this way

Question 48

William v Hensman

RATIO

Answer 48

• In law, all co-owned land in England and Wales must be held in a trust
  
  • Joint tenants
  • Tenants in common
• Severance:
  
  • An act of one of the persons, operating on their own share
  • By mutual agreement
  • Where there is a course of dealing that is sufficient to show that the interests of all the parties were mutually being treated as a tenancy in common

Question 49

Burgess v Rawnsley

FACTS

Answer 49

• Mr Honick and Mrs Rawnsley were joint tenants, but Mr Honick occupied the property alone. They bought it thinking they would both live there
  
  • Mr Honick was thinking of marriage, but Mrs Rawnsley intended to live alone in the upstairs flat
• Mrs Rawnsley did not move in and they agreed orally she would sell her share for £750. She then changed her mind and wanted more
• Later on, Mr Honick died. The house was sold and his administratrix, Mrs Burgess, wanted to establish severance to get half the sale proceeds which would be more than £750

Question 50

Burgess v Rawnsley

JUGMENT

Answer 50

LORD DENNING MR

• There was a sufficient common intention for severance at £750. The subsequent repudiation made no different
• “Even if there was not any firm agreement but only a course of dealing, it clearly evinced an intention by both parties. that the property should henceforth be held in common and not jointly. They entered into negotiations that the property should be sold. Each received £200 out of the deposit paid by the purchaser. That was sufficient”
• A common intention had been formed through the parties ‘course of dealings’ which in turn severed the joint tenancy

BROWNE LJ

• Simply because s40 LPA was not fulfilled (now s2 LPMPA) did not mean an oral agreement would not bind because that section merely made it unenforceable, not void, in absence of writing
• This was based on mutual agreement, not a course of dealings, but expressed no final opinion

PENNYCUICK LJ

• “The significance of an agreement is not that it binds the parties; but that it serves as an indication of a common intention to sever”
• “One could not ascribe to joint tenants an intention to sever merely because one offers to buy out the other for £X and the other makes a counter-offer of £Y.”

Question 51

Burgess v Rawnsley

RATIO

Answer 51

• An agreement to sever must be irrevocable and must be accompanied by mutual intent under the Williams v Hensman catalogue when interpreting s36(2) LPA

Question 52

Goodman v Gallant

FACTS

Answer 52

• Mrs Goodman had a 50% beneficial interest in the matrimonial home, her husband held the legal title
• The husband left and 5 years later, Mrs Goodman and Mr Gallant, who moved in to the house
• Two years later, they entered into negotiations to purchase Mr Goodman’s half share in the house. No formal valuation was undertaken, but it was estimated the house was worth around £17,500
• Mr Goodman agreed to convey the property to them for £6700
• The purchasers’ declaration of trust stated that they held the property as joint tenants
• Mrs Goodman later gave notice to sever the joint tenancy. She later sought to argue that she held 75% of the beneficial interest based on the fact that she already owned 50% of the beneficial interest and contributed to the purchase of the remainder

Question 53

Goodman v Gallant

JUDGMENT

Answer 53

• Mrs G was only entitled to 50% of the beneficial ownership
• In the absence of any claim for rectification or rescission, provisions in a conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property ‘upon trust for themselves as joint tenants’ concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests
• Severance of a beneficial joint tenancy results in a beneficial tenancy in common in equal shares

Question 54

Goodman v Gallant

RATIO

Answer 54

• In the absence of fraud or mistake, the declaration of trust was conclusive as to the parties respective ownership rights. The extend of the parties’ relative contributions was irrelevant

Question 55

Mortgage Corp v Shaire

FACTS

Answer 55

• Mr Marvin Fox and Marsha Shaire lived as joint tenants following a transfer at the time of her divorce proceedings in 1987
• Mr Fox died in 1992, and it was found out that he had forged Mrs Shaire’s signature, and mortgaged the property to the Mortgage Corporation
• It was accepted their charge was valid against his share. However, the payments were not met and the bank applied for a possession order under TLATA 1996 s14
• Mrs Shaire argued that under s15 her interest should prevail over the creditors

Question 56

Mortgage Corp v Shaire

JUDGMENT

Answer 56

NEUBERGER J

• Parliament intended with s15 TLATA to replace trusts for sale with trusts of land, and thus give the court more discretion and “to tip the balance somewhat more in favour of families and against banks and other charges”
• The interest of the chargee was just one factor, and there was no suggestion that it should be given more weight. It was in the court’s discretion
• In the circumstances, the court would not make an order until the parties had had an opportunity to consider the consequences of the court’s conclusions on the law
• “The very name ‘trust for sale’ and the law it has been developed by the courts suggests that under the old law, in the absence of a strong reason to the contrary, the court should order sale”
• The claimant’s interest should be converted to a loan for Mrs Shaire to pay off over time. If she could not meet the requirements, then the court would order a sale (but only after consideration had been given to properties available to Mrs Shaire with the money that would be realised upon the sale)
• Mrs Shaire would never have intended for Mr Fox to have a 50% interest in the property, his share was set at 25%

Question 57

Mortgage Corp v Shaire

RATIO

Answer 57

• Parliament must have intended a change in the law in setting out matters to be taken into consideration in s15
• There was nothing in the language of the 1996 Act to indicate that it upheld the old concept of the trust for sale
• Byrne supported the reasoning in the LPA s30 that a case involving a bankrupt co-owner should be treated the same as one involving an application for possession by a chargee
  
  • The language of the act suggested that Parliament had intended the courts to have a wider discretion in favour of families as against chargees
  • The pre-1997 authorities should not be taken to be decisive in all cases

Question 58

Bank of Ireland Home Mortgages v Bell

FACTS

Answer 58

• A husband defaulted on mortgage payments and had divorced his wife
• The ex-wife and husband lived together in a house with a child who was almost 18 years old
• Could a sale be ordered under s14 of TLATA on the application of the mortgagee bank?

Question 59

Bank of Ireland Home Mortgages v Bell

JUDGMENT

Answer 59

• The husband’s mortgage loan had remained unpaid for over 8 years, with a debt-owing exceeding £300,000 (greater than the value of the house)
• The debt was much more significant than a consideration of a minor who was almost 18, who would not suffer undue hardship if a sale order was made
• On the overall evidence, it was impossible to say that the judge had erred in his findings of fact
• The trial judge had erred in the exercise of his discretion in refusing to order a sale since he had failed to consider the highly material considerations, including the lack of equity in the property and the injustice to BIHM resulting from postponement of the sale

Question 60

Bank of Ireland Home Mortgages v Bell

RATIO

Answer 60

• The courts will try and achieve equity and justice when dealing with defaulted mortgagors and mortgagees

Question 61

Street v Mountford

FACTS

Answer 61

• Mr Street, by an agreement which stated was a licence, granted Mrs Mountford the right to occupy 2 rooms in his property for £57 a week
• The terms of the agreement included that Mr Street could enter the rooms at any time to inspect, to read the meter, carry out maintenance work or for any other reasonable purpose, and that no one other than Mrs Mountford could occupy or sleep in the room without permission
• The licence could be terminated by 14 days written notice
• The agreement also stated that the licence did not and was not intended to give a tenancy and conferred no protection from the Rent Acts

Question 62

Street v Mountford

JUDGMENT

Answer 62

Lord Templeman

• “An occupier of residential accommodation at a rent for a term is either a lodger or a tenant”
  
  • The occupier is a lodger if the landlord provides extra services which require the landlord or their servants to exercise unrestricted access to and use of the premises. They are entitled to live in the premises but cannot call the place their own
• The defining feature of a lease is exclusive possession
  
  • “If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence”
• “The only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at rent”

Question 63

Street v Mountford

RATIO

Answer 63

• A monthly period tenancy is terminable by notice to quit

CRITERIA FOR A LEASE

• The grant of exclusive possession for a period of time which is certain
• The payment of rent

Question 64

AG Securities v Vaughan

FACTS

Answer 64

• AG Securities possessed a long lease of a 4-bed property which was rented to Vaughan and 3 others
  
  • Each tenant signed individual agreements to lease the property
• AGS later terminated all the agreements in 1985
• The tenants claimed they had joint ownership of the lease of the property and were thus afforded statutory protection
• The landlord claimed that the tenants had separate licence agreements
• The CoA heard the case and decided that the tenants held a joint lease. This decision was appealed

Question 65

AG Securities v Vaughan

ISSUE

Answer 65

Could the tenants rely on a collective lease to the property (which would afford them protection under the 1977 Rent Act)?

Question 66

AG Securities v Vaughan

JUDGMENT

Answer 66

• The tenants were licensees and not tenants because none had exclusive possession and their rights could not be amalgamated to give a joint lease
  
  • The right to share the flat together does not give rise to a right of exclusive possession, and prevents the rights from being combined
• Mr Villiers and Ms Bridger had exclusive joint possession of their room and thus had a lease, despite the wording of the agreements which identified them as having only a licence to occupy
• The rights had been crated as numerous, distinct agreements and could not be construed as the licensees possessing joint tenancy

LORD TEMPLEMAN

• Tenants could be described as people entitled to protected with security of tenure and maximum rents since the Rent Act 1977
  
  • People cannot contract out of this statute; this is to protect the vulnerable from harm and to prevent consent to substandard treatment by means of coercion

Question 67

AG Securities v Vaughan

RATIO

Answer 67

• Parties cannot contract out of landlord and tenant legislation
• The tenants were licensees and not tenants because none had exclusive possession and their rights could not be amalgamated to give a joint lease

Question 68

Prudential Assurance v London Residuary Body

FACTS

Answer 68

• In 1930, by a sale and lease back arrangement, London City Council let a strip of land to Mr Nathan for £30 a year
• The agreement stated that the tenancy was to continue until the Council required the land for road widening
• Nathan was entitled to erect temporary one storey buildings on the land
• The road widening scheme never materialised and the occupation continued for over 60 years, during which the benefit of the agreement was transferred to Prudential Assurance. London Residuary Body took over the free hold but they had no road making powers
• Prudential Assurance were still paying the £30 a year, but the market rent was £10,000 a year
• Question: whether the agreement did in fact create a tenancy

Question 69

Prudential Assurance v London Residuary Body

JUDGMENT

Answer 69

LORD TEMPLEMAN

• The tenancy was too uncertain to be effective, and thus had not created a binding lease
  
  • “A grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined the landlord does not create a lease”
• “If the landlord does not grant and the tenant does not take a certain term the grant does not create a lease”
• The expressed lease ‘until the strip of land is needed for road-widening’ is not a valid lease in law

Question 70

Prudential Assurance v London Residuary Body

RATIO

Answer 70

• A lease must have either a fixed end date or a certain-to-occur absolute longstop date (e.g. the end of a person’s life)
  
  • The expressed lease ‘until the strip of land is needed for road-widening’ is not a valid lease in law

Question 71

Mexfield v Berrisford

FACTS

Answer 71

• A tenancy granted by a housing association no longer attracts security of tenure under the Housing Act 1985 or 1988, and is ordinarily terminable by notice to quit
• Mexfield’s standard form occupancy agreement purported to grant a tenancy from month to month which was terminable by Ms Berrisford giving one month’s notice to quit
• Ms Berrisford received a notice to quit owning to late rent (which were subsequently paid)
  
  • Mexfield relied on Prudential Assurance, in that a term of uncertain duration cannot create a lease and thus the entire occupancy agreement was void. They argued that Berrisford enjoyed exclusive occupation of the property from month to month (a monthly period tenancy), and in accordance to Street v Mountford, such a tenancy was terminable by notice to quit
• Berrisford argued that although at law the agreement was incapable of creating a tenancy, in equity she was entitled to rely on the terms of the agreement against Mexfield
  
  • Thus, she could seek to enforce clause 6 by way of specific performance or an injunction

Question 72

Mexfield v Berrisford

ISSUE

Answer 72

Whether Mexfield Housing had granted Ms Berrisford a legal tenancy which was terminable only in accordance with its terms, or whether the tenancy was void for uncertainty and therefore took effect as a tenancy from month to month terminable by notice to quit

Question 73

Mexfield v Berrisford

JUDGMENT

Answer 73

• The agreement was terminable only by Mexfield only in accordance with clause 6 (unpaid rent for 21 days, failure to observe stipulations in the agreement, if the tenant ceases to be a member of the Association, or if the Association is dissolved)
• An agreement for an uncertain term cannot be a tenancy in the sense of being a term of years
  
  • Lord Neuberger did not remove the certainty requirement because
    
    • The principal of certainty of term has been fundamental to the concept of a term of years
    • The 1925 Act defines a term of years as “either certain or liable to determination by notice or re-entry”
    • The HoL confirmed the requirement in Prudential
    • A change in law might upset long established titles
    • Where the grant is to an individual, the agreement does take effect as a tenancy
    • The parties accepted that the agreement was incapable of being a valid tenancy according to its terms
• It was intended that Ms Berrisford enjoy the premises for life subject to determination in accordance with the agreement
  
  • The tenancy would have been a tenancy for life prior to the 1925 Act
• The term was uncertain; s149(6) LPA turned the agreement into a 90-year fixed term lease determinable under express provisions
  
  • The agreement was a tenancy for life as a direct result of the common law rule and that therefore its terms are inapplicable in this context
• Ms Berrisford was entitled to retain possession because a legal tenancy subsisted, terminable only in accordance with the terms of the agreement, which Mexfield had not abided by

Question 74

Mexfield v Berrisford

RATIO

Answer 74

• In the absence of any contrary intention, an agreement to create a month to month tenancy creates a monthly periodic tenancy

Question 75

Southward Housing Co v Walker

FACTS

Answer 75

• A housing association claimed possession of a property held by the defendant tenants
• The tenants counterclaimed for a declaration of incompatibility in relation to the Housing Act
• The tenancy agreement, stated to be a weekly tenancy, was not a secure or assured tenancy
• Clause 7(3) provided that before commencing possession proceedings the association would not be sought except on specified grounds (including non-payment of rent). The association served notice to quit and commenced possession proceedings
• The tenants argued that by analogy with Mexfield v Berrisford, the tenancy agreement was to be treated as one for an uncertain term and the rule against uncertain terms, and was to be treated as a 90-year tenancy

Question 76

Southward Housing Co v Walker

JUDGMENT

Answer 76

HILDYARD J

• The right to serve notice depended on the existence of one of the clause 7(3) grounds, it followed that the agreement had to be treated like Mexfield
• The possession order had been competently made
  
  • The rule applying section 149 of the 1925 Act transforming the tenancy into a tenancy for 99 years was not dependent on that being the intention of the parties