L2 - Modes of possessing land (cases)

Question 1

Malayan Credit Ltd v Jack Chia-MPH Ltd (1986) (HL)

Answer 1

Main point: situation in which equity can presume TIC in equity not limited to purchase in unequal shares, mortgage loan advanced unequally or partnership property

Summary: D and P shared premises for business purpose, got lease as JTs, ag on areas to be occupied by each (unequal) and apportioned rent + charges – dispute arose, P (occupying smaller pt) sought equal division of sale proceeds or equal partition => PC held that TIC in equity bcs intention could be inferred from circumstances

Question 1

Williams v Hensman (1861)

Answer 1

Main point = 3 ways to sever a JT (Sir William Page Wood VC at 557)
(1) by “an act of any one of the persons interested operating upon his own share”
(2) by mutual agreement
(3) by “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”

Question 2

Harris v Goddard (1983) (CA)

Answer 2

Main point: notice severing JT must show intention that it be effective immediately

Summary: H & W were JT of freehold title to their home, W left and served divorce petition incl § asking court to make such order as it considered just regarding the house, H died in car crash before divorce hearing, H’s executors claimed that § severed JT

=>CA held that JT not severed : § in divorce petition not a notice within meaning under s36(2) LPA bcs didn’t express intention that severance be effective immediately

Question 3

Burgess v Rawnsley (1975) (CA)

Answer 3

Main point: oral ag to sell share in house = enough for severance

Summary : P and D (both widowed) became friends + brought house ‘as joint tenants’, each providing half of purchase price – P intending to marry D, D only intending to live in upstairs flat – they didn’t marry and D didn’t move in, evidence of oral ag in which D ag to sell her share in the house to P, but subsequently she refused ; P died, P’s administratrix claimed that JT severed in equity vs D claimed right of survivorship

=> CA held that JT in equity had been severed by oral ag to sell the share, even though ag not specifically enforcable

Question 4

Bull v Bull (1955) (CA)

Answer 4

Main point : under trust for sale, TICs are each entitled to possession of premises until sale => neither can turn the other out except by ending co-ownership (by ag or court order under s30 LPA 1925)

Summary : P & his mother M brought house as home for themselves, conveyance in name of P, who provided greater pt of purchase money – M didn’t intend to give P her pt of money. When P married, ag that M would occ only 2 rooms – M ag w/ DIL so P asked her to leave

=> CA held that M = TIC in equity, until house was sold each was entitled to possession of premises and neither could turn the other out

Question 5

Davis v Jackson (2017) (HC)

Answer 5

Main point : occ rent not payable to TIB by default, there must be some conduct of the party in occ or other feature of the case that justifies it

Summary : Enstranged H&W (not living together), W brought house to live in w/ children, re-mortgage deed stating that house held on trust for both H&W as JTs - H went bankrupt, TIB sought declº that JT severed by bankruptcy + claim occ rent ag wife as TIC

=> HC held in favour of wife: default position where co-o in occ and TIB no is that no occ rent payable, there had to be some conduct by occ party or other feature of the case justifying ccl that appropriate / fair to depart from that default position – here, no ag or expectation that H would have right to occupy (never lived in the house or contributed to outgoings)

Question 6

Ali v Khatib (2022) (CA)

Answer 6

Main point : confirmed that co-o not obliged to pay occupation rent merely bcs living in the property and other co-o is not, smth more has to be shown to make it just and equitable for payment of occupation rent to be required (eg exploiting property for personal gain or preventing co-o who wished to occupy from exercising his right) => focus on behaviour of person in occupation

Question 7

Mortgage Corporation v Shaire (2001) (main point)

Answer 7

s15 TLATA gives courts greater flexibility in determining applications for sale of a home => has increased discretion to determine weight to be given to each factor in a particular case, interest of creditors not necessarily > interests of family residing in the property

Question 8

Mortgage Corporation v Shaire (2001) (summary)

Answer 8

D&F lived together as H&W, each w/ BI in home (subj to mortgage) – after F’s death, revealed that F had forged D’s signature, ntb on mortgage charge in favour of C bank – mortgage not repaid so C applied for order for possession and sale under s14(1) TLATA, D resisted on ground that court had to take into acc factors other than chargee’s interest, shouldn’t necessarily be given more weight that her wish to stay in her home

=> Court held in favour of D (declined to make an order): w/ s15 TLATA, P intended to give court wider discretion in determining applications for sale of a home ; interest of chargee only one of the factors to be taken into account, not to be given more importance than the interest of family residing in property – weight to be given to each factor in a particular case = matter for the court’s discretion

Question 9

First National Bank v Achampong (2003) (CA)

Answer 9

Main point : where marriage is effectively over (even though no divorce) and children are adults, interests of creditors outweigh interests of family

Summary: Bank seeking sale of house for non-payment of mortgage, wife under undue influence when signing mortgage (so claiming that void ag her share of property)
=> CA held in favour of bank: legal charge ineffective but equitable charge over H’s estate severed JT ; marriage being over and children grown up meant that interest of using house as family home should be given little weight

Question 10

White v White (2004)

Answer 10

Main point: intention under s15(1)(b) TLATA common intention of persons who created the trust, prior to the creation of the trust (Arden LJ) (+ family home can be ≠ matrimonial home)

Question 11

Bagum v Hafiz (2016) (CA)

Answer 11

Main point: court under s14 can’t direct sale of a BI to another B but does have the power, when making order for sale, to give other B right of pre-emption before sale on the mk

Summary: House owned by 3 TIC = mother (C) and 2 sons, C sought court order for one son to sell his interest to the other or alternatively order for sale in the open market
=> CA upheld judge’s decision that no jurisdiction to order S1’s share to be sold to S2, but court did have power to order Ts to sell the property, and to give one of the Bs right of pre-emption (opportunity to purchase at court-determined price = same eco effect as order sought)

Question 12

Re Citro (1991) (CA) (main point)

Answer 12

Where spouse w/ BI in family home becomes bankrupt, interests of creditors will usually prevail over interests of other spouse, and order for sale be made within short period – circumstances must be exceptional for order to be postponed longer (more than ordinary csq of debt & improvidence)

Question 13

Re Citro (1991) (CA) (summary)

Answer 13

2 brothers declared bankrupt, all each had was their ½ share of BI in matrimonial homes, debt owed by each exceeded value of their interests – B1 separated from his wife (who lived in house w/ 3 kids), B2 lived in his home w/ wife and kids – TIB applied to court for sale of the homes, Hoffman J at 1st instance made orders for possession & sale, to be postponed till youngest child was 16

=> CA allowed TIB’s appeal and reduced period of postponement to 6m – where spouse w/ BI in family home becomes bankrupt, interests of creditors will usually prevail over interests of other spouse, and order for sale be made within short period – exceptional circumstances to postpone order longer need to be more than ‘the ordinary consequences of debt and improvidence’

Question 14

Barca v Mears (2005)

Answer 14

Bk owned and occupied property, used to live w/ former partner and child, now child staying for ‘substantial part of every week’ – Bk resisting TIB application for sale bcs would disrupt education of child (w/ special edº needs, incl concentration and coordination pb which father was helping him w/) – ag that hardship caused to child = special circumstances

=> Court held in favour of TIB, circumstances here were not sufficiently exceptional to justify postponement of the order (child’s special edº needs not extreme + sale of property would not require him to change schools bcs could live w/ mother)

Question 15

Williams and Glyn’s Bank v Boland (1981) (HL)

Answer 15

H = RP of matrimonial home, W had contributed substantial sum to purchase => H held on trust for himself and W as TIC, H mortgaged house to bank (made no enquiries abt W), and defaulted, bank sought possession

=> HL held that wife in actual occupation (within meaning of s70(1)(g) LRA 1925) => equitable rights as TIC protected by reason of her occupation = made her interest overriding => binding on the bank (bcs had only been dealing w/ one trustee = H)

Question 16

Bristol and West BS v Henning (1985) (CA)

Answer 16

D1 & D2 = cohabiting couple w/ children, D1 brought house w/ mortgage from BS = C, conveyance in D1’s named but D2 did lots of wk on the house (incl building & decoration), some intention that D2 get ½ BI but nothing in writing – D1 left and defaulted, BS sought possession

=> CA held in favour of BS: Ds didn’t declare any trust in writing or reach any express ag abt BI + not enough evidence of intention for CICT so D2 didn’t have any EI capable of taking priority over bank’s charge

Question 17

City of London West BS v Flegg (1988) (HL)

Answer 17

Main point : disposition (incl charge by way of legal mortgage) by two or more trustees or a trust corporation overreaches any BI in the land (under s2(2) LPA 1925)

Summary: married couple + wife’s parents (Ds) purchased house, registered in names of couple but Ds contributed to purchase price  house held on trust by couple for all 4 as TIC – couple remortgaged the house without knowledge of Ds, and defaulted, BS sought possession
=> HL held in favour of BS : D’s BI in the property had been overreached (bcs BS dealt w/ 2 Ts ≠ Boland)

Question 18

Equity and Law Home Loans Ltd v Prestidge (1992) (CA)

Answer 18

Main point: possible to impute B’s consent to mortgage where it is used to repay a first mortgage

Summary: Ds = unmarried couple who brought a house, registered in D1’s name but D2 contributed to purchase, balance raised by mortgage (D1 alone resp for repayment) – D1 remortgaged (without knowledge of D2) to P company (knew of D2’s occº), used most of the 2nd loan to repay the 1st but kept remainder for his own use – D1 left and defaulted, P sought possession

=> CA held in favour of P : D2’s EI subordinated to mortagee’s rights in relation to amount used to repay 1st, D2’s consent to the mortgage could be imputed notwithstanding her lack of knowledge of it bcs otherwise D2 would get a windfall (removal of 1st mortgage charge which she consented to over her EI)

Question 19

Street v Mountford (1985) (HL)

Answer 19

Main point: where residential accommodation is granted for a certain term (at a rent)* w/ exclusive possession, legal csq = creation of a tenancy, doesn’t matter that the parties try to call it a licence

Summary: S granted M right to occupy 2 rooms for £37/w/ subj to termination by 14d notice and condº laid out in ‘licence agreement’, – M & husband had exclusive occupation of the rooms

=> HL held it was a tenancy : where residential accom has been granted for a term at a rent w/ exclusive possession, grantor providing neither attendance nor services, legal csq = tenancy – irrelevant that the parties called the ag ‘licence’

Question 20

Street v Mountford (1985) (HL) - Tenant v lodger

Answer 20

tenant ≠ lodger :
* Lodger : where landlord provides attendance / svc which require L / his servants to exercise unrestricted access to and use of the premises => “A lodger is entitled to live in the premises but cannot call the place his own”

• Tenant: has exclusive possession = rights of an O of land, ‘albeit temporarily and subject to certain restrictions’ => express reservation by L of limited rights to enter (to view state of premises / repair and maintain them) not a pb (as long as limited)

Question 21

Watts v Stewart (2018) (main point)

Answer 21

Main point (A textbook) : CA drawing sharp distinction between legal exclusive possession on the one hand (= what T has: right to exclude all 3Ps incl L) and a merely personal right of exclusive occupation on the other hand

Question 22

Watts v Stewart (2018) (quote)

Answer 22

Sir Terrence Etherton MR at [38]:
“whether an occupier is a licensee or a tenant is not necessarily determined by the labels or language used by the parties. It turns on the intention of the parties having regard to all the admissible evidence.”

Question 23

Lord Denning in Errington - summarising position one whether occupier is tenant or licensee

Answer 23

“The result of all these cases is that, although a person who is let into exclusive possession is prima facie to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege, with no interest in the land, he will be held to be a licensee only”

Question 24

Westminster CC v Clarke (1992) (HL)

Answer 24

Main point : case where no tenancy bcs ag didn’t confer exclusive possession of room

Summary: C council owned premises w/ 31 single rooms (each w/ bed and cooking facilities) used as hostel for homeless single men (incl D) => D signed licence to occupy:
* stating that not intended to give D right to exclusive occ of any room allocated to him
* council could change accom without notice or require him to share,
* ag only gave D right to occupy ‘in common w/ council (representative could enter at any time)
* D required to be in room by 11pm every night + ensure that visitors left by that time + not do anything disturbing other residents

When C served notice to terminate ag, D claimed protection of Housing Act 1985 => HL held in favour of C: licence could only create secure tenancy if conferred exclusive possession, and not the case here, C retained possession of D’s room

Question 25

AG securities v Vaughan (1990) (HL)

Answer 25

4 separate ag made at ≠ date granted 4 occupants exclusive right to use 4 bedroom flat in common w/ 3 other occupants, in return for monthly payment (ag for 6m, renewable)

=> HL held that occupants were licensees, not tenants, bcs 4 ag indep from each other + didn’t confer right of exclusive possession on any indiv occ, just a right to share the flat with others + made on ≠ dates w/ ≠ ppl for ≠ terms and rent so not a joint tenancy, would be artificial to try and mould the separate contracts into one

=> contrast w/ Antoniades v Villiers (decision handed down simultaneously)

Question 26

Antoniades v Villiers (1990) (HL)

Answer 26

L entered contemporaneously into separate but identical ag w/ man and GF, granting them right to occupy flat in his property – ag expressed to be licences + stated that licensor not granting exclusive possession, use of room in common w/ licensor or any other licensees he may allow to use them – in fact L never imposed any extra occupant, but did allow a friend of theirs to stay

=> HL held that there was a tenancy : 2 ag made at the same time were interdependent + purported right of L to introduce new occupiers = pretense to avoid protections of the Rent Acts, where actually intention was to confer on occupants exclusive possession for a term at rent = joint tenancy created, artificial to deny it

=> contrast w/ AG Securities v Vaughan (decision handed down simultaneously)

Question 27

Aslan v Murphy ; Duke v Wine (1990) (CA)

Answer 27

Main point: court must “have regard to the true rather than the apparent bargain made by the parties”

Situation 1: C owned small basement room occupied exclusively by D under written ag which said that D not in exclusive possession of any pt of room, D had licence to use in common w/ other licencees, D had to vacate room for 90min every day and C would retain keys to the room

Situation 2: C = O of a 3 bedroom house occupied exclusively by Ds and their children under written ag providing that D had no right to exclusive occ (occ shared w/ other ppl as directed by C), C would retain a key and reserved right to enter at any time

=> CA held in favour of D in both cases there was a tenancy : court “had to have regard to the true rather than the apparent bargain made by the parties”
=> in both cases, true bargain = granting Ds exclusive possession unless and until C required them to share - Ds were tenants and could not be unilaterally turned into licensees by C requiring them to share occupation

Question 28

Mikover v Brady (1989) (CA)

Answer 28

Main point: no JT where no unity of interest (each T lb to pay only for their part of the rent)

L owned 2 room flat, D and friend applied to occupy, signed identical ag granting licensee a right to use in common w/ other granted a like right to the rooms, for 6m (renewable), monthly rent – 2y later F moved out, D offered to pay whole rent but L refused, L sought possession when D fell into arrears on his own rent

=> CA held that not a JT bcs no unity of interest, each lb to pay only for their pt of the rent (so not jointly and severally lb)

Question 29

Camelot Guardian Management Ltd v Khoo (2018) (CA)

Answer 29

Main point = eg of an ag effective as a licence (not a disguised tenancy)

C = member of gp of companies arranging for ‘property guardians’ to occupy vacant buildings temporarily to protect them, C entered into ag w/ D who was to act as guardian of building => ‘licence ag’ specifying D didn’t get exclusive possession, sharing w/ C, who reserved right to alter extent / location of living space within building / change room D occupied + prohibited D from holding meetings or parties, have overnight guests or more than 2 visitors during the day

=> CA held in favour of C = D was a licensee : ag granted right to occ property as a whole w/ other guardians but no exclusive possession of a particular room – given purpose of ag, essential that possession could be returned to O at short notice => ag not a pretence, really did create licence

Question 30

Ashburn Anstalt v Arnold (1989) (CA)

Answer 30

Main point = confirmed that it is possible to have a tenancy without a rent

/!\ overruled on other grounds but CA has reaffirmed principle it is possible to have a lease without rent in Skipton Building Society v Clayton (1993)

+ rent point found in LPA 1925, s205(1) : term of years absolute = “a term of years […] whether or not for a rent”

Question 31

Prudential Assurance Co Ltd v London Residuary Body (1992) (HL)

Answer 31

Main point: ag for an uncertain period is void – takes effect on implied tenancy based on tenant’s possession and payment of rent

O of strip of land alongside highway sold land to local authority, who leased it back to him in same ag until such time as land was required to widen the highway – council abandoned plans to widen highway, reversion passed to D1 and lease was assigned to C, who sought declaration that tenancy could only be determined on land being required for road widening

=> HL held in favour of D: lease in the ag was for an uncertain period and therefore void => land held instead on yearly tenancy created by tenant’s possession and payment of yearly rent

Question 32

Berrisford v Mexfield Housing Co-operative Ltd (2012) (HL) (main point)

Answer 32

a tenancy failing for uncertainty of term (bcs L can’t serve notice unless certain circumstances arise) which would’ve been a tenancy for life before 1926 takes effect as a 90y lease under s149 LPA 1925

Question 33

Berrisford v Mexfield Housing Co-operative Ltd (2012) (HL) (summary)

Answer 33

Mrs B (B) = tenant in property belonging to housing association (M), under standard periodic tenancy ag which included provision for T to end tenancy by giving 1m notice, but no equivalent for L (could only end tenancy on specific circumstances eg breach of covenant or T in arrears) – M nevertheless purported to serve notice to B, who refused to vacate => lower courts applied Prudential and found that periodic tenancy which L could not terminate void bcs uncertain term, B held under implied periodic tenancy bcs was in occº and paid rent, so M could terminate w/ 1m notice

=> HL held in favour of B : M not entitled to possession bcs B had 90y lease
- in absence of indication to the contrary, tenancy granted ‘from month to month’ = monthly tenancy which can be terminated by either party by giving 1m notice
- BUT here, ≠ bcs M couldn’t serve notice unless certain circumstances arose : tenancy void for uncertainty of term => ag would’ve given rise to tenancy for life prior to 1926, to be treated as a tenancy for a term of 90y instead, determinable acc to clauses in ag or on B’s death

Question 34

Southwards Housing Co-operative Ltd v Walker (2016) (HC)

Answer 34

Main point: where tenancy ag is void for uncertainty of term, can’t be converted into 90y lease under s149 LPA if clearly contrary to the intention of the parties at time of ag that T should enjoy premises for life

C housing association granted D tenancy of residential property, ag stated weekly tenancy but C could only end tenancy by serving notice to quit on one of several grounds set out in ag (incl non-payment of rent) – D got in arrears and C gave notice + sought possession, D resisted the claim on ground that ag for uncertain term = tenancy for life taking effect as 90y lease under s149 LPA 1925

=> HC held in favour of C : ag was for an uncertain term (bcs C’s right to give notice dependent on existence of grounds specified in ag) => general rule that it should take effect as 90y lease yielded to plain contrary intention of the parties

Question 35

Walsh v Lonsdale (1882) (CA)

Answer 35

Main point: equitable lease prevails over implied legal tenancy

Summary : P and D ag that D would grant P lease of a mill, P given possession and paid quarterly rent but no deed executed. D tried to have P pay in advance under terms of the ag, Q = whether P lessee under CL rules (implied tenancy) or under rules of (equitable lease)

CA held that “a person occupying under executory agreement for a lease is to be treated as holding on the terms of the agreement” => In Equity, P and D bond by the terms of the agreement as if had been completed – equity prevails bcs Judiciature Acts

Question 36

National Carriers Ltd v Panalpina (1981) (HL)

Answer 36

Main point: doctrine of frustration is in principle applicable to leases

Summary : D had lease of warehouse for 10y – 5y in, only vehicular access closed by local authority (bcs danger of neighbouring derelict warehouse falling) , C sued D for unpaid rent, D claimed lease had been frustrated

=> HL held in favour of C : doctrine of frustration in theory capable of applying to leases, but on facts of case (ntb length of continuance of lease after interruption of use) not applicable

Lord Russel (objecting/ dissenting?) : reasons why not applicable:
* land ≠ chattel : ‘has a general quality of indestructibility’
* purchase of land (whether freehold or leasehold) takes risk it may turn out to be unsuitable for purpose he has in mind (unless warranty by V)  freehold O can’t ‘return’ the land after sale

Question 37

Hussein v Melham (1992)

Answer 37

Main point: possible for a lease to come to an end bcs repudiatory breach

D granted 3y lease to C, incl implied L covenant to keep premises in repair – C regularly complained abt disrepair of premises, D did nothing, even when ceiling fell in one of the bedrooms – C moved out and handed keys back to D

=> Court held that D’s breaches of covenant were repudiatory, and by vacating house and returning keys, C accepted repudiatory conduct and terminated contract – C also got damages

Question 38

Hammersmith and Fulham LBC v Monk (1992) (HL)

Answer 38

Main point: possible for one JT alone to serve notice and terminate joint periodic tenancy

D and X cohabiting, granted joint periodic tenancy of flat by C council, terminable on 4w notice – X left and served notice to C without D’s knowledge / consent, C notified D tenancy terminated and sought possession

=> HL held in favour of C, possible for one JT to terminate periodic joint tenancy by giving notice without concurrence of other JTs

Question 39

Bruton v London and Quadrant Housing Trust (2000) (HL)

Answer 39

Main point = mere licensee can grant a ‘Bruton tenancy’ out of his licence – which ofc doesn’t confer any proprietary interest in the land but comes within scope of s11 Landlord an Tenant Act 1985 (statutory duty of L to repair)

local council owned block of flat which it planned to demolish, but in meantime gave D (Quadrant Trust) licence to use flats to provide accommodation for the homeless (had no statutory power to grant D a lease) – C housed by D in the flat in ag stated to be licence, C sought to claim that ag was a lease imposing statutory duty of repair on D (s11 Landlord and Tenant Act 1985)

=> HL held that the ag was a ‘lease’ for purpose of s11 Landlord and Tenant Act 1985

=> possible for a lease not to be proprietary in character – irrelevant that D didn’t have title in the property bcs lease describing relationship btw 2 parties, not concerned whether proprietary interest binding on 3Ps

Question 40

City PBS v Miller (1952) (main point)

Answer 40

Main point: mere ag for grant of a lease not overriding interest under s70(1)(k) LRA 1925 bcs refers to leases ‘granted’ for any term = “clearly imports the actual creation of a term of years”