Land cases Flashcards
Walsh v Lonsdale
“A contract for a lease is as good as a lease” i.e. a contract for a lease is at least an equitable lease
Street v Mountford
Lease = term + rent + exclusive possession; if the parties intended to create a license but in fact created a lease intentions are irrelevant (‘five-pronged digging instrument’); if you are an object of charity you will not have exclusive possession; having keys/the right to enter does not eliminate exclusive possession; providing services e.g. changing bed linen eliminates exclusive possession
Ashburn Anstalt v Arnold
Rent is not necessary for a lease
Skipton v Clayton
Rent is not necessary for a lease
Lace v Chantler
A lease must involve a sufficiently certain term (“for the duration of the war” was not)
Prudential Assurance v London Residuary Body
A periodic tenancy is sufficiently certain for a lease
Mexfield Housing Co-op v Berrisford
An uncertain term is turned into ‘a term of 90 years’ to create a lease (continuation of pre-1925 law)
Southward Cooperative v Walker
The 90 year rule (s 149(6) LPA) may not apply where this thwarts the parties’ intentions
AG Securities v Vaughan
As the four tenants had independent tenancies and could not exclude a fourth tenant, they did not have exclusive possession
Antoniades v Villiers
As the couple’s tenancies were interdependent (would either both be signed or neither), they had exclusive possession
Aslan v Murphey
The landlord having a key does not preclude exclusive possession; the landlord providing services like cleaning may make the resident a lodger
Westminster City Council v Clarke
A homeless man provided with council housing with a curfew, allotted rooms (which could be changed) was a licensee fact specific
Watts v Stewart
Exclusive occupation (not being able to exclude the legal owner) does not suffice for a lease - generally the position of objects of charity
Camelot v Roynan
Restrictions such as no smoking, no more than 2 guests, inspections without notice, escorting guests from the premises did not negate exclusive possession
Bruton v London and Quadrant Housing Trust
A person can be granted a lease by someone with a license despite there being nothing for the lease to be ‘carved out of’
Kay v Lambeth
In the Bruton scenario, if the freeholder ended their license, the tenant’s lease would also end
Hammersmith v Monk
One joint tenant can end the tenancy without the other’s consent or knowledge (council house)
Sims v Dacoram BC
The ability of one joint tenant to end the tenancy does not violate the other’s Article 8 or A1P1 rights
MacDonald v MacDonald
You cannot bring a human rights claim against a private landlord
Manchester City Council v Pinnock
Where an occupier is being evicted, they may raise a proportionality claim under Article 8
Barclays Bank v O’Brien
Where a person acts as a surety on the basis of undue influence, they have an equitable right against third parties (the bank) which have actual or constructive notice of the false representation; to avoid this the bank must take reasonable steps to ensure the surety had been properly obtained
RBS v Etridge No 2
If a surety can prove undue influence, they have an equitable right against third parties (the bank) if the bank had notice and failed to correspond with the surety including understand their financial status, get a sense of any undue influence, liaise with their solicitor (though no need for a private interview)
HSBC v Brown
Where a surety claims undue influence, the bank has to provide documentation proving they met the Etridge requirements e.g. that the surety received independent legal advice
Four-Maids Ltd v Dudley Marshall
The mortgagee ‘may go into possession before the ink is try on the mortgage’
Horsham v Clark
The mortgagee can sell the property before repossessing, this does not violate A1P1
Cheltenham BS v Norgan
The court can postpone repossession for a ‘reasonable period’ - beginning with the full term of the mortgage and then considering 8 factors including how much the borrower can reasonably afford to pay, the time remaining on the original term, and the reason for the debt
Ropaigealach v Barclays Bank plc
The bank does not have to go to court under s 36 of the 1970 AJA before repossessing
Palk v Mortgage Services
The bank cant withhold sale of a property to keep the mortgagor paying interest and thereby accumulating debt
Southern Pacific Mortgage Ltd v Jacqueline Vera Green
A mortgagor was unsuccessful in her claim that her bank acted discriminatorily in not allowing her to change her mortgage to interest-only
Gray v Gray
There must be two trustees to overreach
Williams & Glyn’s Bank ltd v Boland
An overriding interest cannot be overreached if there is 1 trustee; actual occupation involves some physical presence
City of London BS v Flegg
An overriding interest can be overreached if there are 2 trustees
Petter v Rigg
£1 is an example of nominal consideration which does not constitute ‘valuable consideration’ under section 132(1) LRA
Midland Bank v Green
Market value is not necessary for ‘valuable consideration’ e.g. £500 for a £40,000 farm suffices
National Westminster Bank Plc v Malhan
Overreaching powers under s 2(1) LPA are not incompatible with articles 8, 14, or A1P1
Strand Securities Ltd v Caswell
A personal license is not a proprietary interest for the purpose of the actual occupation overriding interest
Kingsnorth v Tizard
What constitutes a reasonable inspection for the purpose of establishing actual occupation depends on the circumstances, though inspecting at a suspicious time may be inadequate
National Provincial v Ainsworth
A personal right (e.g. being allowed to stay in the house) is not a proprietary interest for the purpose of the actual occupation overriding interest
Scott v Pacific Mortgages
Fraudulent purchasers were unable to confer a proprietary right upon the occupier for the purpose of proprietary estoppel because they were not the legal owners of the property
Lloyds Bank v Rosset
Builders could be in ‘representative occupation’ while works were ongoing for the purposes of the actual occupation overriding interest
Hypo-Mortgages v Robinson
Children cannot have rights of occupation
Abbey National v Cann
Actual occupation must involve some ‘permanence and continuity’ e.g. not the presence of furniture for 35 minutes; if the occupier is not present the occupation must be manifest and accompanied by a continuing intention to occupy; rejected the scintilla temporis argument
Malory Enterprises Ltd v Cheshire Homes (UK) Ltd
What constitutes actual occupation depends on the ‘nature and state of the property’; there must be ‘some degree of permanence and continuity’
Link Lending v Bustard
Actual occupation does not necessarily have to be continuous and uninterrupted e.g. swapping between the property and a mental institution weekly
AIB v Turner
You are not in actual occupation of a second home to which you return occasionally
Antoine v Barclays
If a person fraudulently obtains a court order to register an interest, the registrar did not make a mistake as the court order was voidable not void and hence valid at the time of registration
Baker v Craggs
A right of way can be created during the registration gap
Stodday & Ripway v Pye
The purchaser cannot serve a notice to quit on someone with an interest in the land during the registration gap
Paddington Building Society v Mendelsohn
If you get a mortgage at the same time as possession of the property (an acquisition mortgage), an intention will be imputed your interests will be overridden by the bank’s
Barclays Bank v Guy
If you fraudulently become the registered proprietor of land and take out a mortgage on that land, the registry can be rectified but the mortgage stands as the transfer is voidable not void
Hodgson v Marks
Physical occupation constitutes actual occupation
Polo Woods Foundation v Shelfon-Agar
There is no test for ‘real and appreciable benefit’ to the dominant tenement
Regency Villas v Diamond Resorts
The easement must benefit the land and the use of the land (not just increase its value); recreational easements are possible if they accommodate the land;
Hill v Tupper
There must be a sufficient connection between the use and enjoyment of the land and the easement
Moody v Steggles
An easement (e.g. a sign) can accommodate a building on land (e.g. a pub) if sufficiently connected to the way the building is used though significant factual feature was the age of the pub
Copeland v Greenhalf
A right which is overly extensive and exclusive of the servient owner is not an easement
Clapman v Edwards
The right to advertise something other than the dominant tenement’s business did not accommodate the dominant tenement and hence was not an easement
Bailey v Stephens
There must be some proximity between the dominant and servient tenements (100 miles is too far)
Todrick v Western National Omnibus Co
The servient and dominant tenements do not have to be directly adjacent; the excessive exercise of a right for a use it cannot bear is not an easement
Mounsey v Ismay
A recreational right cannot be an easement overruled
Harris v Flower
An easement can only be used to access the dominant tenement (not additional land adjacent - unless the use of that land is ancillary to the use of the dominant)
Re Ellenborough Park
- dominant and servient tenements
- owned by different people
- the easement accommodating the dominant
- right capable of forming the subject of a grant;
the right must benefit the land rather than being beneficial in general (not merely increase its value); the dominant and servient don’t have to be directly adjacent
Gore v Naheed & Ahmed
Confirmed Harris v Flower: an easement can only be used to access the dominant tenement
William Alfred’s Case
There is no easement of a right to a view
AG v Antrobus 2
There is no easement of a right to wander
Dyce v Lady James Hay
The courts will recognise new easements which arise ‘with the changes that take place in the circumstances of mankind’
Reilly v Booth
An easement does not give ‘exclusive and unrestricted use of a piece of land’
Miller v Emcer Products Ltd
Excluding the servient owner for a short period of time is not overly exclusive
Wright v Macadam
The right to use a coal shed was an easement under section 62 despite excluding the servient owner
Grigsby v Melville
An easement will not be granted if this gives the dominant owner exclusive possession of the servient tenement
London and Blenheim Estates v Ladbroke Retail Parks Ltd
If the right leaves the servient owner with ‘no reasonable use’ of his land, it will not be an easement; the dominant tenement must be clearly identifiable
Bachelor v Marlow
If a right to park excludes the servient owner this is not an easement (applying Blenheim) i.e. the ouster principle - the servient’s rights are ‘illusionary’
Moncrieff v Jamieson
Obiter statement rejecting the ouster principle; the test should be whether the servient retains ‘possession and control of the land’
Virdi v Chana
Being able to plant trees, maintain fences and place flowerpots sufficed for ‘reasonable use’ so as not to oust the servient owner
Begley v Taylor
Being able to repave the parking space for aesthetic purposes sufficed for ‘reasonable use’ so as not to oust the servient owner
Phipps v Pears
There is no negative easement preventing you from knocking down your house due to the implications of this for your neighbour
Union Lighterage Co v London Graving Dock Co
An easement of necessity is an easement without which the property could not be used at all - not one merely necessary for the reasonable enjoyment of the property
Manjang v Drammeh
Easements must be necessary not merely inconvenient e.g. land accessible by water;
- common owner of a legal estate in two plots
- access between plot and highway can only be accessed through the other plot
- right of way was not documented when it should have been
Nickerson v Barraclough
The easement’s necessity must have existed at the time of the grant i.e. the division of the land
Stafford v Lee
There must be some common intention of the parties and the easement must be necessary to achieve that intention
Wong v Beaumont
Even if the parties did not realise at the time of the grant that the easement would be necessary, if it in fact was (and there was common intention) it will be created
Wheeldon v Burrows
When land is subdivided, prior rights may impliedly become easements; the easement must be…
- In use by the owner at the time of sale
- Continuous and apparent
- Necessary for the reasonable enjoyment of the plot sold
Millman v Ellis
Wheeldon v Burrows applied to give claimant access to the whole layby despite access to the main road without it not being impossible, but dangerous
Long v Gowlett
Section 62 only applies to prior diversity of occupation old law reversed by Wood v Waddington
Wood v Waddington
Prior diversity of occupation is not required for s 62, so long as the use of the easement is continuous and apparent; Wheeldon v Burrows made redundant
Crabb v Arun DC
An easement may be implied through PE; selling land and it becoming landlocked for 5/6 years is the detriment (commercial)
R(Lewis) v Redcar
The right must be one which ‘a reasonably alert owner could not failed to have notice’ (nec clam - not secret)
Duke of Norfolk v Arbuthnot
For common law prescription, the easement must have been used right back to the beginning of legal memory (1189)
Dalton v Angus
An easement can be created by prescription through a lost modern grant if the right has been exercised for 20 years or longer
Mills v Silver
An easement can be prescribed by lost modern grant if the right was exercised for 20+ years even if those weren’t the most recent years; tolerating use is not the same as giving permission
London Tara Hotel v Kensington Close
If permission is given to one person to exercise a right and that right gets adopted by a different person, there is no longer permission and an easement can be established
Winterburn v Bennett
A sign suffices to prevent an easement arising through prescription
Dutta v Hayes
The scope of an easement must be restricted expressly e.g. to ‘agricultural use’
White v Grand Hotel Eastbourne
Unless there is some express limitation in the grant, it does not cease to exist just because it is exercised far more frequently
Jelbert v Davis
If the use of the right goes ‘beyond anything contemplated at the time of grant’ it will cease to exist e.g. farmland allowing 200+ caravans
McAdams v Robinson
If there is a change in circumstances surrounding an implied easement, it will cease to exist if:
- there was ‘a radical change’ in the dominant tenement’s character or identity; and
- the changed use of the dominant land results in a substantial increase or alteration in the burden on the servient land
Benn v Hardinge
It is difficult to prove abandonment e.g. 175 years does not suffice
Woodman v Pwllbach Colliery Co
The servient tenement must be clearly identifiable
Roe v Siddons
The dominant and servient tenements must be owned by different people
Browne v Plomer
There is no easement of a right to privacy
Bryant v Lefever
There is no easement of a right to airflow
Donovan v Rana
An easement which is necessary to fulfil a common intention will be granted e.g. a right to lay pipes and wires under land to meet standards for a dwelling
Wheeler v Saunders
The easement must be BOTH ‘necessary to the reasonable enjoyment’ AND ‘continuous and apparent’
R v Oxfordshire County Council, ex p Sunningwell Parish Council
Prescription ‘prevent[s] the disturbance of long-established de facto enjoyment’ (Lord Hoffmann)
R Square Properties Ltd v Nissan Motors (GB) Ltd Lawtel
Exclusive parking rights are lawful if the servient owner can still use the land for other purposes
Gillet v Holt
If you are promised seven times a farm you have been working on for 43 years the four PE conditions are present; reliance is presumed; there must be a causal link between the promise and the detriment; detriment need not be quantifiable but must be substantial; the four conditions are not ‘watertight compartments’
Cobbe v Yeomans Row Management
If an agreement is contract-esque but lacks formalities, s 2 LPMPA will prevent PE; representation cannot be during pre-contractual negotiations; if the relationship is commercial and the person claiming estoppel experienced a finding of PE is less likely (commercial)
Thorner v Major
There must be a ‘clear and unequivocal’ assurance + reasonable reliance + substantial detriment for PE; implied representations can give rise to PE; if the relationship is personal and absence commercial expertise/the interest in question is clear a finding of PE is more likely (farm)
Inwards v Baker
If you give up another opportunity to spend money and time improving land, then live there for 30 years you have a right via PE to occupy the land (domestic)
Pascoe v Turner
If you spend time and money providing services to repair the property with clear representation, the freehold will be transferred through PE (domestic)
Greasley v Cooke
If you do unpaid work and pass up other jobs for 30 years in reliance upon representations, you have a right via PE to occupy the land (domestic)
Davies v Davies
The clearer the expectation, the greater the detriment (inadequate pay not looking for better jobs) and the longer the time for which the expectation was reasonably held (30 years work), the more likely PE is (farm)
Habberfield v Habberfield
If you do low paid work for 30 years on serious representations you will be entitled to compensation based on reliance and expectation loss; representations made by someone else can suffice if they were authorised by the party
Taylor Fashions v Victoria Trustees
There must be an explicit statement of representation
Jennings v Rice
Mixed motives (e.g. inheriting property/helping an elderly women) do not exclude PE; in quantifying a monetary remedy look to expectation, detrimental reliance and unconscionability; don’t compensate solely on the basis of expectation if this is disproportionate to the detriment
Campbell v Griffin
Acting out of friendship/responsibility does not exclude PE; providing free in-house case for 20 years (though living rent-free) gives rise to compensation based on detriment
Southwell v Blackburn
Detriment can arise even if ‘the benefits flowed both ways’ e.g. giving up a secure tenancy but living rent-free with children
Moorgate Mercantile v Twitchings
Estoppel is a ‘principle of justice and equity’ which stops people going back on their word where it would be unjust/inequitable to do so (Denning)
Willmott v Barber
There are 5 requirements for PE since overruled as too narrow
Henry v Henry
Weigh detriment suffered against benefits enjoyed
Taylor v Dickens
An elderly person with lots of money may make promises of inheritance for enjoyment without PE arising - this is a matter of human nature
Chaudhary v Yavuz
An easement cannot be an overriding interest by actual occupation
Birmingham Midshires Mortgage Services v Sabherwal
Family interests arising under PE are capable of being overreached, whilst commercial interests are not (generally accepted)
