L5 - Numerus Clausus (cases) Flashcards
Keppel v Bailey (1834) (main points)
refusal to make a covenant binding on successors in title to the covenantor on NC grounds
+ Lord Brougham insisting that fine to allow ppl to enter into whatever kind of strange personal obligations they may wish (bind only themselves and their representatives) but NOT OK to allow ppl to create such rights in relation to land bcs will then go on to bind successors in title & encumber the land
Keppel v Bailey (1834) (summary)
Co = lessees of ironworks covenanted w/ shareholders of a railroad (K) to use it to transport stones from a certain quarry. B = Co’s successors in title changed source of stone = stopped using the railroad – shareholders tried to enforce covenant ag the, arguing that it ran with the land so bound them
Court held in favour of the Baileys (shareholders) : the covenant did not run with the land
=> NC : contracting parties not a liberty to create any kind of new property right they wish, only personal oblº and recognised property rights
=> B’s mere knowledge of the right not enough to bind B’s conscience (bcs otherwise, B knowing of it would make it proprietary and completely undermine NC)
Keppel v Bailey (1834) (Lord Brougham LC quote nº1)
“There are certain known incidents to property and its enjoyment. […] All these kinds of property, however […] are known to the law and familiarly dealt with by its principles. But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconsistent both to the science of the law and to the public weal that such a latitude should be given.”
Keppel v Bailey (1834) (Lord Brougham LC quote nº2)
“There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives […] to answer in damages for breach of their obligations […] but great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote”
Keppel v Bailey (1834) (Lord Brougham LC quote nº3)
“The knowledge … cannot bind [the] assignee by affecting his conscience. If it did, then the illegality would be of no consequence; and however wild the attempt might be to create new kinds of holding and new species of estate, and however repugnant such devices might be to the rules of law, they would prove perfectly successful in the result, because equity would enable their authors to prevail”
Hill v Tupper (1863)
Main point (here) : reiteration of NC + rejection of attempt to distinguish Keppel (K involved successor in title vs here, trying to assert a right against a wrongdoer, who was infringing C Co’s rights)
Summary: Canal Co granted H exclusive right to put pleasure boats on canal adjoining land leased by H, T = 3P tavern O also put pleasure boats on the canal, H sued T for infringing his exclusive right
Court held in favour of T, who was not bound by H’s right
=> H’s right was not a recognised easement (bcs connected to the business carried upon the land rather than the enjoyment of the land itself) + didn’t fall within any other category of recognised proprietary right
=> Refused to recognise new kind of proprietary right : what H has was merely a licence (or mb covenant) = a personal right enforceable only btw the parties, not against T = 3P not privy to its creation
Hill v Tupper (1863) (Pollock CB quote)
“A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of the property”
National Provincial Bank v Ainsworth (1965) (HL) (main points on NC)
refusal to recognise wife’s interest in husband’s property / wife’s marital rights to be provided w/ a home etc as proprietary rights
+ Lord Wilberforce’s description of requisite characteristics for a right to be recognisable as proprietary
National Provincial Bank v Ainsworth (1965) (HL) - Lord W’s characteristics for a right to be recognised as proprietary
“before a right or an interest can be admitted into the category of property […] it must be :
* definable,
* identifiable by third parties,
* capable in nature of assumption by third parties, and
* have some degree of permanence or stability”
National Provincial Bank v Ainsworth (1965) (HL) (summary)
H had title to family home, deserted, leaving W and children in occº – H mortgaged to bank and defaulted, bank sought possession, W resisted, ag that her right to the matrimonial home (‘deserted wife’s equity’) = overriding interest due to her occº under s70(1)(g) LRA 1925
=> Decision: in favour of the bank – the wife’s rights were of a purely personal nature, and AO can’t make personal rights proprietar
