Property

Edward Gardner Fox and others v (1) The Scottish Ministers and (2) Glasgow City Council, [2012] CSIH 32, 27 March 2012

Tue, 08 May 2012 20:58:00 GMT

Inner House case concerning a compulsory purchase order (CPO) made in relation to property on Argyle Street/Robertson Street in Glasgow. The owners of the properties which were subject to the CPO raised an appeal in which they sought to quash the decision of the Scottish Ministers to confirm the CPO. The CPO had been issued as part of a back-to-back scheme between the Council and a developer for the conversion of the property into, amongst other things, a hotel and apartment complex.

However, the scheme had fallen through when the developer became insolvent and the Irish Government’s National Asset Management Agency failed to re-instate a guarantee by Anglo Irish Bank.

Although all of the parties were then agreed that the CPO should not take effect, there were two practical difficulties:

there is no statutory procedure by which the Ministers can rescind a decision made by them to confirm a CPO; and
there is no statutory procedure by which an acquiring authority can withdraw a confirmed CPO.

This meant that the CPO would remain valid until it expired by the passage of time (on 7 September 2013) adversely affecting the interest of property owners (and that of their heritable creditors) in the property.

The Council therefore granted an undertaking which extended to successors in title confirming that it would take no further steps to acquire the land subject to the CPO. The court took the view that, in this case, that was the best means by which the Council could give effect to its intention not to implement the CPO. After considering the authorities and noting that it is possible for a local authority to abandon its rights under a CPO by its conduct, the court found that, all the more so, it was possible for it to abandon its rights by express words.

PCE Investors Ltd v Cancer Research UK, [2012] EWHC 884 (Ch), 04/04/2012

Tue, 08 May 2012 20:50:00 GMT

English High Court case concerning a break option contained in a sublease between Cancer Research (the landlord) and PCE (the tenant). PCE sought to exercise the break option which was conditional on payment of the rent up to the break date. The break date occurred shortly after a quarter day and, after receiving an invoice for a full quarter’s rent (payable quarterly in advance) from Cancer Research, PCE sent an email to Cancer Research’s managing agents advising them that a payment had been made for the rent for the period between the quarter day to the break date and asking whether that was the correct basis for calculating the rent for that period. The managing agents did not respond.

Cancer Research then argued that the PCE had failed to terminate the lease properly contending that, to do so, PCE would have to (amongst other things) pay the full rent for the quarter in advance. The court agreed with Cancer Research. On the September quarter day it could not be said with certainty that the sublease would terminate on the break date as the tenant may have been in breach of another condition of the break option. The clear obligation on the quarter day to pay a full quarter’s rent could not be retrospectively reduced merely because an event which occurred after that date operated to terminate the sublease from the future date.

PCE’s alternative argument based on estoppel also failed. On the facts before the court, there was no basis for finding that there was a duty on the part of the Landlord to tell the Tenant that the Landlord believed the full rent was due.

Siveter v Wandsworth Borough of London [2012] All ER (D) 119 (Feb)

Thu, 12 Apr 2012 22:32:00 GMT

The Claimant was a tenant of the Defendant local authority, and claimed damages for personal injuries sustained following an infestation of poultry mites from a pigeon nest situated outside of her flat. The Defendants' contractors had removed the nest and sprayed the area, but had not sprayed inside a locked cupboard on which the nest had been situated, nor sought to have the cupboard unlocked in order to spray. At first instance the Judge found for the Defendants.
On appeal, the Court of Appeal held that the judge had erred in his conclusion that it had been reasonable for the contractor not to do anything about de-infesting the cupboard. The views of the experts had been unanimous that the cupboard should have been inspected and de-infested. The suggestion that the Claimant was relying upon the benefit of hindsight was not apposite; the existence and behaviour of such mites was well known; migration into the flat following removal of the nest was foreseeable. The cupboard should have been sprayed if open, and if locked, advice should have been given that de-infestation should be carried out in the near future.

Leary v Birmingham Crown Court [2012] All ER (D) 137 (Feb)

Thu, 12 Apr 2012 22:27:37 GMT

The appellant was the sole tenant of a flat which was searched by the Police on two occasions, as a result of which the appellant was arrested. In June 2010 a Closure Notice was served on him pursuant to s.1 Anti-Social Behaviour Act 2003. Following a contested hearing a s.2 Closure Order was made.

The appellant appealed unsuccessfully to the Crown Court, and then unsuccessfully to the QBD Administrative Court, where Blair J considered that (1) article 8 ECHR was engaged, but it was not necessary for the Police and the Local Authority to demonstrate that they had tried less draconian measures so that closure was a measure of last resort. There was no such statutory requirement; and (2) a Closure Order had the effect of closing the premises altogether, and exception could not be carved out for the appellant so as to vary the terms of the order to allow the appellant's occupation, but to prevent visitors; to do so might prove self-defeating.

George Wimpey Manchester Ltd v Valley & Vale Properties Limited & Ors [2012] EWCA Civ 233

Thu, 12 Apr 2012 22:23:28 GMT

Valley & Vale granted Wimpey a 150 year lease of a building plot, subject to onerous covenants. The parties later agreed Wimpey would sell back the lease, resulting in a merger of the freehold and leasehold interests. Valley & Vale went into administration before completion and the court considered whether there was an unpaid vendor's lien in Wimpey's favour over the property.

The Court of Appeal held that, on an objective assessment of the parties' intentions, there was no unpaid vendor's lien. The lien was inconsistent with the intention that a merger should immediately follow completion. It would give Wimpey a beneficial interest in the property which would prevent any merger unless discharged.

David Michael Coventry (t/a RDC Promotions) & ors v Terence Raymond Waters and James Edwards Waters [2012] EWCA Civ 26

Thu, 12 Apr 2012 22:21:59 GMT

David Michael Coventry (t/a RDC Promotions) and Moto-Land UK Ltd (Appellants/2nd and 3rd Defendants) v Katherine Lawrence and Raymond Shields (Respondents/Claimants/Appellants on Cross Appeal) v Terence Raymond Waters and James Edwards Waters (4th and 6th Defendants/Respondents on cross appeal) [2012] EWCA Civ 26

An appeal brought by the 2nd and 3rd Defendants against a finding that noise nuisance emanating from a stadium and track where they organised motor sports events constituted a private nuisance to the owners of a nearby property. The primary ground of appeal was that the trial judge had failed to take into account that the implementation of the planning permission granted with the stadium and track had changed the character of the locality.

Planning permission had been granted for the construction of the stadium in 1975. In 1992, temporary planning permission was granted for further land to be used as a motocross track. In July 2002, permanent planning permission with conditions was granted. The Claimants purchased their property in January 2006. They denied any knowledge of motor sports being held in the vicinity at the time of their purchase.

In allowing the 2nd and 3rd Defendants' appeal and dismissing the Claimants' cross appeal the Court held that the grant of planning permission cannot authorise the commission of a nuisance. Yet, the grant of planning permission and implementation of the same may change the character of the locality. This would ultimately be a question of fact. If a change occurred, any alleged nuisance would have to be determined in light of the changed background.

The motor sports noise emanating from the stadium and track were an established part of the character of the locality and thus could not be ignored when considering whether the matters complained of by the Claimants constituted a nuisance. The 2nd and 3rd Defendants had carried out abatement works in 2008 to comply with the conditions attached to the planning permission. The trial judge's finding of a private nuisance was based on an error of law and could not stand.

Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012)

Thu, 01 Mar 2012 21:56:20 GMT

We are pleased to welcome solicitor and partner Anis Waiz of Mohindra Maini LLP as he continues his critical review of current case law. Here, Anis examines Garguilo v Jon Howard Gershinson (2) Louisa Brooks Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of 140 High Street, Godalming ( Deeds) [2012] EWLandRA 2011_0377 (06 January 2012)

Introduction

Here we examine a very important and perhaps unnoticed decision of the Adjudicator to HM Land Registry which raised two substantive legal issues. The execution of a lease and who has the right to seek rectification.

As a result of this case the Land Registry replaced its earlier guide to Rectification and indemnity in January 2012 . http://www.landreg.gov.uk/upload/documents/pg39.html

Background

Mr and Mrs Garguilo applied to the land registry to rectify the register of a title to property in surrey. They and another party were the registered owners. They sought to cancel a lease purportedly granted to a third party and a charge in favour of a Bank . Both the Lease and the Charge were registered in September 2008. The background facts are somewhat complicated and the reader is referred to the judgment.

The third party a borrower of the bank failed to make payment to the Bank and accordingly the Bank appointed LPA receivers over the property. The LPA receivers were respondents to the application.

The application was made on the basis the Lease was a nullity because a third party did not knowingly sign the Lease.

Between the parties it was common ground that if the Lease was void then the registration of the Lease constituted a ‘mistake’ for the purposes of paragraph 5(a) of Schedule 4 to the Land Registration Act 2002 (the 2002 Act)

In addition under paragraph 6(2) of Schedule 4 of the 2002 Act there was an important issue as to who could apply to remove both the Lease and the Charge.

Issues

Mr and Mrs Garguilo submitted that the Lease was invalid as it was not validly executed as a deed because it did not comply with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (the 1989 Act). The Respondents’ position was to put Mr and Mrs Garguilo to strict proof of their case.

The adjudicator set out the key facts as to the execution of the lease and again the reader is referred to the Judgment. Of note is the adjudicator's conclusions on the evidence and the legal analysis.

Findings

The adjudicator found that:

1 The central factual issue in this case is whether a third party executed the Lease that is to say whether he signed the execution page and the plan knowing that they related to the Lease. It is not in dispute that he did not do so at the meeting where the other leases were executed.

2 However she found that the pages signed by him (the final execution page, and the plan) were, at the time of signature, separate from the remainder of the Lease. This conclusion was inescapable in the light of certain correspondence. There was also a hand written, undated, note which appears to have been written by a solicitor during the course of a meeting (or phone call) "Me to send you lease for 4.Pages"

3 No evidence was given to counter the evidence of the third party . However she was satisfied he did sign the relevant pages knowingly and willingly. There were a number of reasons. First, the entire deal between the parties and the Bank, depended on the execution of leases. Without the execution of the Lease the third party would not have become the joint freeholder . It was clearly in his financial interest to make sure the deal went through.

Secondly the third party's evidence was that he expected another party to make arrangements to satisfy the Bank and may have convinced himself, or have been convinced, that those arrangements could be made once the deal was done, and that another would, in due course, transfer the Lease to Mr and Mrs Garguilo (free of the Bank’s Charge).

More importantly the third party did not have any satisfactory explanation as to how his signature came to be on the relevant pages. It was not accepted he was signing so many documents, or so many plans, that he did not know what he was doing.

Execution of the lease

The Adjudicator found:

1 the signature page and the plan were signed by the third party and that he did so knowingly and willingly. The Lease was therefore not a forged document.

2 As to section 1 (3) of the 1989 Act Mr and Mrs Garguilo submitted that even if the signatory pages of the Lease were, as found, executed separately and inserted into the Lease this invalidates the instrument as a matter of law.

Section 1 (3) provides

An instrument is validly executed as a deed by an individual if, and only if,

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

It was submitted that the word it in the section must refer back to the deed in other words the entire document, and not merely the execution pages or any other page. The point was considered by Underhill J in R v Her Majesty’s Commissioners of Revenue and Customs [2008] EWHC 2721. The claimants sought judicial review of the decision of HMRC to seek warrants to search their offices and the decision of the Crown Court to grant the warrants. HMRC’s case was that the scheme (trust deed) in question was flawed and that the claimants sought dishonestly to conceal the flaws. The judge therefore had to consider whether the scheme was flawed. There were differences between the drafts and the final versions.

The court in that case considered as an additional factor that each of the three key documents was intended to be a deed. Noting section 1(3) Underhill J said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.

3 Here the Adjudicator found that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing. The policy argument is that the signature should reflect the proper agreement. If the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains.

The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case.

In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by the third party) at some unspecified time after the other leases were executed (and after the third party had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

4 By Section 52(1) Law of Property Act 1925 all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in the adjudicators judgment, the Lease was void as it was not made by deed.

The issue of estoppel was raised by the respondents. However it was held that the lack of a (valid) signature could not be cured by estoppel.

Who could apply for rectification ?

Schedule 4 para 6 (2) (a) (b) makes provision as to alteration of the register . It provides

"No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless—

(a)he has by fraud or lack of proper care caused or substantially contributed to the mistake, or

(b)it would for any other reason be unjust for the alteration not to be made"

In this case

1 The Respondents, as LPA receivers (and as agents for the borrower) were not in possession of the property. Neither was the borrower.

2 However the question was whether the borrower was deemed to be in possession by virtue of section 131(2) of the 2002Act. This section provided that the possession of a tenant is deemed to be that of the landlord; of the Lender that of the borrower of the licensee that of the licensor

There was no direct relationship of landlord or tenant or licensor and licensee between the borrower and another . However on the evidence, the borrower consented to another going into occupation, and knew of the arrangement made between them.

On these facts, and for the purpose of this section, the Adjudicator found that occupation of another could be said to be that of the borrowers licensee.

Alternatively pursuant to schedule 4 para 6 (2) (a) the question becomes whether the borrower caused or contributed to the mistake (the invalidity of the lease) by fraud or lack of proper care.

It was held there was lack of proper care either by the borrower or by his solicitor in allowing the Lease to be executed as it was. In any event, even if this were not the case, there were a number of factors which, make it unjust for the alteration of the register not to be made.

Conclusion

The register was rectified by cancelling the lease and the charge. That no doubt has very serious consequences for the lender and ultimately may lead to various claims .

Whilst the factual background is rather complex this case serves a timely reminder to conveyancers and lenders as to basic principles . Ignore proper execution of deeds at your peril.

Of significant interest is the adjudicator's use of section 131 (2) of the 2002 Act and the key as to who is in possession and thus who was entitled to apply for alteration. Indeed the land registry have now altered its practice note.

Samarenko v Dawn Hill Ltd [2011] EWCA civ 1445 1st December 2011 CA: Rix, Etherton, Lewison LJJ

Thu, 16 Feb 2012 22:32:27 GMT

In Samarenko the Court of Appeal was considered whether the failure to pay a deposit on time under a contract for the sale of land amounted to a repudiatory breach of contract entitling the seller to terminate the contract.

The Defendant Company contracted with the Claimant to purchase the freehold interest in a property that he owned. It was a condition of the contract of sale that the time for payment of the deposit was of the essence. The Defendant failed to pay the deposit within the stipulated timeframe resulting in the termination of the contract by the Claimant. The Claimant, inter alia, sought a declaration that the contract had been validly terminated and was successfully granted summary judgment. The Defendant appealed

In dismissing the appeal the Court held that failure to make a timely payment of the deposit amounted to a repudiatory breach of contract. Any presumption that time was not of the essence was rebutted. In the ordinary case, the requirement to pay a deposit, including the time of payment, was a condition of the contract and therefore time was of the essence for the date of payment.

London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356 Lord Neuberger (MJ), Aikens LJ, Lewison LJ

Thu, 05 Jan 2012 20:33:53 GMT

The Appellant (LTH) appealed against a decision that the Respondent (KCH) acquired an easement by prescription over a private roadway belonging to its hotel. LTH argued that KCH's use could not be deemed "as of right". There was no acquiescence on the part of LCH. It had been ignorant in 1980 to the change in ownership of KCH's hotel and thus of the determination of the licence granted to the original owners of the hotel. Accordingly, by inference an implied licence arose upon change of ownership, which expired in 1996. Alternatively, LTH argued that use of the roadway by coaches could not be relied upon by LTH in establishing a prescriptive right as KCH did not derive a direct benefit.

To establish a prescriptive right, it had to be shown that a party's use satisfied the tripartite test: nec vi, nec clam and nec precario: without force, without secrecy and without permission. To succeed, LCH had to objectively show that KCH and its predecessors' use had been to the contrary.

The court accepted that use could be deemed secretive if the identity of the person enjoying the use was unknown to the owner of the putative servient land. Yet, this was not borne out on the facts. Use of the roadway by KCH and its predecessors had not been secretive nor had changes in ownership been hidden. Further, use was without force or permission. The licence granted by LTH had expired, albeit impliedly, on transfer of ownership of KCH's hotel in 1980, without renewal. The grant of a licence necessitated a positive, overt act by the servient owner. By virtue of more than 20 years' use, a prescriptive right of way arose, which extended to use by coaches. Appeal dismissed.

Sun Street properties Limited v Persons Unknown [2011] All ER (D) 72 7th December 2011

Thu, 05 Jan 2012 20:33:03 GMT

Squatters appealed against an injunction and possession order made against them following their occupation of a disused building owned by a bank. They were served with the applications at 9pm on 17.11.12 and with an unsealed copy of the order made by the court at 9.18pm.

It was held that although the interim injunction had been made properly, service had been grossly inadequate. There was no covering letter and no contact details clearly given for the court, the Applicant or their solicitors. However, the injunction was subsumed within the possession order, and that was not set aside. The squatters' Article 10 and 11 arguments were not accepted. Their political point had been made and the suggestion that their squatting was sufficiently socially useful to justify their continued possession was rejected.

Abed v City of Westminster [2011] EWCA Civ 1406

Thu, 05 Jan 2012 20:21:28 GMT

The Court of Appeal dismissed an appeal pursuant to Part 7 Housing Act 1996 as to the suitability of accommodation. The Appellant argued that Westminster had followed an unlawful process in offering accommodation at the first stage without having first made an assessment as to suitability of the accommodation for her needs. No challenge was made to any aspect of statutory review process. The CA considered this lack of challenge to be fatal to the appeal; the Act "provided for the applicant to challenge the decision and to have it fully reconsidered, with the opportunity to ensure that the full facts are taken into account". Lloyd LJ continued at [26] "That seems to me to exclude as illegitimate a challenge on the grounds such as the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution". The review process was a continuation or a replacement for the initial decision-making process.

Roger Jones and Katherine Jones v. William Henderson Gray and Edna Drummond Ross or Gray, [2011] CSOH 204, 13 December 2011

Thu, 05 Jan 2012 16:13:00 GMT

Outer House case concerning the creation of a servitude right of access by prescriptive possession. Mr and Mrs Gray owned 40 Montgomerie Drive, Fairlie and a lane running to it from Montgomerie Drive. Mr and Mrs Jones owned 38 Montgomerie Drive and sought declarator that a servitude right of pedestrian and vehicular access had been created in favour of no 38 over part of the lane leading to the rear of their property and garage.

The Joneses also said that the Grays had erected a lockable post and fence in front of their garage so as to obstruct access to it from the lane and sought a decree ordaining removal of the obstructions and interdict preventing the Grays from interfering with the disputed area.

Section 3(2) of the Prescription and Limitation (Scotland) Act 1973 provides:

“If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge.”

In support of their action, the Joneses claimed that their predecessors in title had taken access over the disputed area including daily access to the garage with their car and with their sailing dingy from time to time between April 1979 and June 2007. The access had been free and uninterrupted and it was consistent with exercise as a matter of right. The Joneses had taken access over the disputed area from June 2007 for parking their car in the garage, unloading their car and getting from the lane to the garage doors.

The Grays argued that the Joneses had not adequately specified the continuity, volume and frequency of the possession in their pleadings nor had they demonstrated that possession had been continuous for the prescriptive period or that it was open and ‘as of right’. They contended that the action should be dismissed on the basis the Joneses arguments were irrelevant and/or that they did not give fair notice of important matters to the Grays.

Lord Doherty was not satisfied that the case should be dismissed. Applying the test set out in Jamieson v Jamieson (1952), it was not a case which would necessarily fail even if all of the Joneses arguments were proved. Several of the issues between the parties involved questions of fact and degree which would be capable of determination after a proof (e.g. whether possession was continuous). Lord Doherty was also not persuaded that there was a lack of fair notice on important matters. The crux of the Grays’ complaint was that the use of the word “included” suggested that the Joneses would be able to lead evidence of other unspecified modes of access of which no notice had been given. Lord Doherty considered that use of the word “included” did not reserve them a free hand to do so and if it were to happen the Grays would be entitled to object to such evidence being led.

A proof before answer was allowed.

Holmes v Westminster CC [2011] EWHC 2857 (QB)

Thu, 22 Dec 2011 14:49:17 GMT

Mr Holmes held a non-secure tenancy pursuant to s.193 Housing Act 1996 from March 2005. In June 2009, the Council notified him that he had ceased to be subject to the duty because he had failed to attend two inspection appointments. The Council was asked to review the decision, but in the meantime the Council served a notice to quit and proceedings were brought in August 2009. In January 2010 the discharge decision was withdrawn, and Mr Holmes' solicitors asked the Council to withdraw the claim for possession. Unfortunately, two days later two housing officers were, on their account, assaulted by Mr Holmes, in the light of which the Council continued with the proceedings. Mr Holmes said he had been tearing up their letter and had lost balance and fallen over on top of them.

Eady J agreed with the Recorder, concluding at [40] that "the Recorder was fully entitled to come to the conclusion, on the information before him, that there was no need to reject what has become the standard summary procedure for possession cases and to adopt, contrary to normal practice, a trial process involving determination of whether or not Mr Holmes had committed either a criminal or civil assault this would have given rise what Lord Hope in Powell, at [41], called " ... the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area". His Lordship observed shortly afterwards that it is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness and proportionality. As I have already noted, that did not happen in this case. No positive case was pleaded. Yet, in the light of the evidence befor e the court, the burden lay on Mr Holmes to show that he had substantial grounds to establish the need for a hearing to find the facts". The Recorder's approach was in accordance with CPR Pt 55, and there was no suggestion that the Recorder had failed to consider any point on which either argument or evidence had been put forward.

Mitu v LB Camden [2011] EWCA Civ 1249

Thu, 22 Dec 2011 14:48:05 GMT

Mr Mitu appealed against a finding that Camden did not need to send a 'minded to find' notice where the review officer overturned one aspect of the refusal of a duty to house (intentional homelessness), but had, nonetheless decided that he was not in priority need.
The Court of Appeal followed previous settled case law, that reg 8(2) of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was not a discretionary option that the reviewing officer could apply or disapply according to whether or not he or she considered that the service of a 'minded to find' notice would be of material benefit to the applicant. The officer had two tasks, firstly, to 'consider' whether there had been a deficiency or irregularity in the original decision or in the manner in which it was made; and secondly, if there was, but the officer was nonetheless minded to make a decision adverse to the applicant on one or more issues, to serve a 'minded to find' notice on the applicant explaining his reasons for his provisional views.

Jones v Kernott [2011] UKSC 53

Thu, 22 Dec 2011 14:46:59 GMT

The Supreme Court recently allowed this appeal, holding unanimously that Patricia Kernott had a 90% interest in property owned with Leonard Kernott.

In a joint judgment Lady Hale and Lord Walker clarified Stack -v- Dowden [2007] UKHL 17 and expressly confirmed the approach of Oxley -v- Hiscock [2004] EWCA Civ 546. The court remains primarily bound to discover what the parties' actual shared intentions were, whether express or to be inferred from their conduct. They summarised the principles applicable when a family home is bought in joint names of cohabitees with no express declaration of their beneficial interests.

The starting point is that equity follows the law and they are joint tenants both in law and equity. The presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed a common intention. Their common intention is to be deduced objectively from their conduct. In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it was not possible to ascertain by direct evidence or by inference what their actual intention as to the shares in which they would own the property, each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. The whole course of dealing in relation to the property was to be given a broad meaning enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions. Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were intended or fair. Where the family home is in the name of one person alone, the starting point is to consider whether it was intended that the other party should have any beneficial interest. The common intention has to be considered objectively.

Lady Hale and Lord Walker adopted the approach of Mr Nicholas Strauss QC in the High Court that "... if [the court] cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it". Lord Collins broadly agreed. Lord Kerr considered that "as soon as it is clear that inferring an intention is not possible, the focus of the court's attention should be squarely on what is fair". Lord Kerr and Lord Wilson did not agree with Lady Hale and Lord Walker that there was sufficient evidence in this case to infer a change of intention, but had no difficulty in imputing an intention that the parties should hold in proportions which were fair.

House of Fraser Ltd v Scottish Widows PLC [2011] EWHC 2800 (CH) Peter Smith J

Thu, 22 Dec 2011 14:44:39 GMT

The Applicant ("H") sought permission to appeal an arbitration award under s.69 of the Arbitration Act 1996 ("the Act"). The arbitrator determined the open market rental of the premises in accordance with the lease. H challenged the award on four points of law. H contended that the arbitrator, when assessing the rent, wrongly took into account post-review evidence, made reference to speculative findings and erred in law in determining the approach which a hypothetical lessee would take in agreeing a rent. The arbitrator had indicated in his directions that neither party had raised any points of law that was material to the decision.

The Respondent, Scottish Widows PLC ("S"), resisted H's application on the basis that the threshold required to obtain permission to appeal was very high. Further, by virtue of the statutory requirements under the Act, the Arbitrator's findings of fact must be taken as the basis for assessing whether the arbitrator erred on a point of law. H could not seek leave to appeal on the basis that the arbitrator reached the wrong conclusion on the evidence unless that arbitrator was asked to rule on the question of admissibility. S argues that the arbitrator was not asked to so.

In refusing permission to appeal, the Court held that the threshold required for permission to appeal under s.69 of the Act was very high. The intention behind the Act was to curtail factual challenges being disguised as legal submissions. Equally, s.69 of the Act required questions of law to be fairly and squarely put to the arbitrator. In the present case, the questions of law had not been put before the arbitrator. Further, the arbitrator's factual decisions could not be challenged on the basis of pseudo question of law.

Charles Terence Estates Ltd v The Cornwall Council [2011] EWHC 2542 (QB) Cranston J

Thu, 22 Dec 2011 14:43:07 GMT

A claim for unpaid rent from the Claimant Company ("C") against the Defendant Local Authority ("L"). From 2006 to 2007 C purchased 30 properties and leased them to two former district councils that were replaced by L. The aim of the scheme was to help the district councils' meet their housing need. The district councils provided C with loans and grants amounting to £1,000,000 to purchase the properties. The remainder of the money was raised by C through bank loans and personal guarantees from the directors. When L replaced the district councils in 2009 it reviewed the scheme undertaken with C. Subsequently L ceased paying rent under the leases and demanded immediate repayment of the grants and loans. C instituted proceedings for rent arrears. L rejected the claim contending that the leases were flawed at the outset for both private and public law error.

Cranston J held that it was unattractive for a public body to raise its own unlawful actions to defend against a commercial agreement it had entered into freely and with access to legal and financial advice, albeit that it may have needed to consult externally. Yet, it was an important legal policy that public bodies acted lawfully and were called to account if they failed to do so. The corollary of this was that public bodies themselves must be able to raise the legality of their actions in entering a contract.

On the evidence, L failed to establish that the district councils had acted for improper purposes, with regard to irrelevant considerations. Further, L failed to establish that the district councils had not taken into account relevant considerations and had acted irrationally. Notwithstanding, the district councils did fail to have regard to the true market rent of the properties leased from C at the time of their negotiation. This was a breach of their fiduciary duties to council tax payers, which meant the lease had no effect. Nevertheless, L's restitutionary remedy was defeated by C, who acting in good faith, changed its position consequent on the leases and the funding arrangement being agreed.

Berrisford v Mexfield Housing Co-operative Ltd: [2011] UKSC 52

Thu, 22 Dec 2011 14:36:50 GMT

Mexfield is a mutual housing association and accordingly Mrs Berrisford's 'occupation agreement' did not have any statutory protection except under the Protection from Eviction Act 1977.

As a matter of construction it was held that the agreement was monthly and was terminable either on notice by Mrs Berrisford or on breach of a tenant covenant. Mexfield could not terminate the agreement by a notice to quit.

The agreement was neither void for a lack of term certain nor a simple monthly periodic tenancy. Pre-1925 it would have been a 'tenancy for life' and therefore pursuant to s.149(6) Law of Property Act 1925, it was a tenancy for a term of 90 years, determinable on Mrs Berrisford's death or on one of the conditions stipulated within the occupation agreement.

Marie Garside and Michael Anson v RFYC Limited and B R Maunder Taylor [2011] UKUT 367 (LC) HHJ ROBINSON

Thu, 17 Nov 2011 12:05:38 GMT

The Appellants Lessees ("A") appealed against a decision of the Leasehold Valuation Tribunal ("the LVT") whereby the LVT decided that service charges being demanded by the Respondents in respect of major works for the years 2009 (£100,000) and 2010 (£538,012) were reasonably incurred pursuant to s.19(1)(a) of the Landlord and Tenant Act 1985 ("the 1985 Act") . The LVT interpreted reasonableness under s.19 of the 1985 Act as relating to the reasonableness of the works in question and their costs.

In allowing the appeal, the Upper Tribunal (Lands Chamber) held that the 1985 Act did not limit the scope of what was to be considered reasonable. "Reasonable" should be given a broad, commonsense meaning in the present circumstances. As such, the financial impact of major works on lessees through service charge demands and consideration of whether major works should be phased were capable of being material considerations when assessing whether the costs were reasonably incurred for the purposes of s.19(1)(a) of the 1985 Act.

For example, cases of financial impact could be considered in broad terms by reference to the nature and location of the property and the amount of service charges being demanded in one year in comparison to previous years. Other factors could be relevant but remained factual issues and matters of judgment for the LVT to weigh up against the hardship of substantial increased costs when deciding, on the evidence, whether the service charge costs were reasonably incurred.e circumstances it may, so the application should be allowed to proceed.

Thames Valley Holdings Limited [2010] UKUT 325 (LC)

Thu, 27 Oct 2011 21:34:00 GMT

The National Trust had the benefit of restrictive covenants preventing development on the Applicant's land. The application was to modify the covenants under s.84(aa) and (c) of the Law of Property Act 1925. Similar applications were refused in 1979 and 1991 so the National Trust sought to have the fresh application struck out as an abuse of process.

The Tribunal refused a strike out on two grounds. Firstly that the locality, setting, housing demand and planning policy had changed since the previous applications, so it was not inevitable that the application would fail. Secondly that although previous Tribunals had held money would not adequately compensate the National Trust, there was a properly arguable contention that in some circumstances it may, so the application should be allowed to proceed.

SL v Westminster City Council [2011] EWCA Civ 954

Thu, 27 Oct 2011 21:33:03 GMT

SL appealed as to the proper interpretation and scope of s.21(1)(a) National Assistance Act 1948 (1948 Act), and submitted that WCC owed him a duty to provide residential accommodation. WCC claimed that the assistance provided could not properly be described as care and attention within the 1948 Act, and that the care was otherwise available than through the provision of accommodation SL had claimed asylum based on his fear of persecution in Iran on account of his homosexuality. In 2009, upon learning of the death of his partner in an Iranian prison, SL attempted to commit suicide and was admitted to hospital. On discharge WCC provided social worker support, including advice, encouragement, monitoring and arranging contact with support groups and a "befriender".

The CA applied the "looking after" definition of care and assistance and held that WCC's actions fell within the 1948 Act because they were monitoring SL's mental state so as to avoid a relapse or deterioration. As to whether the care was not otherwise available than through the provision of accommodation, the CA interpreted this to mean not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation; in SL's case there was an obvious need for stable accommodation.
Landlord-Law

Alvina Whittaker v Anthony David Kinnear (acting by his agents on Gershinson and Louise Brooks of Allsop LLP being Receivers appointed under the Law of Property Act 1925 [2011] EWHC 1479 (QB)

Thu, 27 Oct 2011 21:31:36 GMT

The Appellant ("W") was the freehold owner and occupier of land registered under two separate titles; one of which included a house. W entered into an agreement with the Respondent ("K") whereby she agreed to sell him both registered titles below market value. A condition of sale was that W would live in the house for as long as she wanted and K provided an assurance to that effect. The arrangement was not recorded in the sale agreement. K subsequently defaulted on the mortgage and receivers were appointed to obtain possession of the property. Without prior allocation to a track, the hearing was deemed to be analogous to a summary judgment application. W raised the defence of proprietary estoppel, which K successfully argued had been defeated by s. 2 of the Law of Property (Miscellaneous Provisions) Act 1989 ("the 1989 Act"). Consequently, K obtained an order for possession against W as her defence did not amount to a genuine dispute on substantial grounds under CPR 55.8. W appealed.

In allowing the appeal the Court held
Proprietary estoppel in a case involving a sale of land had survived the enactment of s.2 of the 1989 Act;
It was the nature of the parties' dealings, not the nature of the property, which determined whether a case was to be regarded as commercial or domestic, the present case was commercial;
There were no reported cases that decided the issue of whether the purported assurances of the kind given by K to W could create a proprietary estoppel or a constructive trust in W's favour, notwithstanding that the parties signed a contract of sale which made no mention of the same;
Claims based on proprietary estoppel and constructive trust were fact-sensitive;
In the present case the facts were not sufficiently clear for the case to be suitable for summary determination on the documents. The claim was therefore genuinely disputed on grounds which appeared to be substantial in accordance with CPR 55.8.

Suurpere v Nice & Anor [2011] EWHC 2003 (QB) 27 July 2011

Thu, 13 Oct 2011 09:27:16 GMT

Following Potts v Densley and Pays [2011] EWHC 1144 (QB) and Tiensia v. Vision Enterprises Limited [2010] EWCA Civ 1224, it was reiterated that where the provisions of Chapter 4 of Part 6 of the Housing Act 2004 in relation to deposits were complied with before the date of the hearing, the court could not impose sanctions on the landlord under section 214(4).

The landlords had not provided the tenant with the information required under section 213(5). They relied on the standard letter of registration of the deposit sent out by the Deposit Protection Service to the tenant on receipt of the deposit sum. That was deemed insufficient under the Act. The information must be provided by the landlord personally, certified by them as correct and must include all of the particulars required by the Housing (Tenancy Deposits) (Prescribed information) Order 2007. The landlords had not done this by the date of the hearing and were required to pay the penalty under section 214(4).

An appropriate standard form for the provision of the statutory information can be found at: http://www.depositprotection.com/documents/prescribed-information-template.pdf

Sharples v Places for People Homes Limited; Godfrey v A2 Dominion Homes Limited [2011] EWCA Civ 813

Thu, 13 Oct 2011 09:25:43 GMT

Does a bankruptcy order or Debt Relief Order ("DRO") does not preclude the making of an order for possession of an assured tenancy on the ground of rent arrears.

S.285(3)(a) Insolvency Act 1986 states that after the making of a bankruptcy order, no creditor shall, in respect of a debt provable in the bankruptcy, have any remedy against the property or person of the bankrupt in respect of that debt. DROs are similar to bankruptcy orders but do not require the Court's intervention, there is no trustee and they are accessible to those who cannot afford bankruptcy fees. By s.251G IA a moratorium is imposed which generally lasts for a year, after which the debtor is discharged from all qualifying debts.

The Court of Appeal dismissed the appeals. 1. the grant of a tenancy creates an incumbrance on the landlord's title, an order for possession restores those rights to the landlord. 2. The failure to pay rent is a breach of contract; forfeiture, possession order, recovery of possession or bankruptcy order do not eliminate personal indebtedness constituted by the rent arrears. 3. As a matter of general principle the order for possession is not a remedy "in respect of" the debt represented by rent arrears which gave the entitlement to the order. It was important to distinguish between motive and the object of the remedy for the purposes of s.285(3)(a) IA.

As to the arrears, no order can be made for payment of such arrears, and nor should a suspended possession order be made conditional on payment of such arrears.

K/S Victoria Street (a Danish Partnership) v House of Fraser (Stores Management) Ltd and House of Fraser (Stores) Ltd and House of Fraser Ltd [2011] EWCA civ 904

Thu, 13 Oct 2011 09:24:30 GMT

The Appellant ("V") entered into a leaseback agreement with House of Fraser (Stores Management) Ltd ("SM"). House of Fraser Ltd ("HoF") was to act as guarantor for SM's liabilities. It was agreed that after 3 months the lease would be assigned to another company within the HoF group. In default, SM would assign the lease to House of Fraser (Stores) Ltd ("S"). Clause 3.5(iii) of the agreement stipulated that HoF would enter into a deed of guarantee for S's liabilities.

Clause 3.15(F) of the lease permitted an assignment of the lease to any company within the HoF group, without the need for V's consent, provided HoF acted as surety to the assignee. No assignment took place. The issues were whether (a) Clause 3.5(iii) was void pursuant to s.25(1)(a) of the Landlord and Tenant (Covenants) Act 1995 ("The Act"); and (b) on assignment by SM to S could the lease be freely assigned back to SM by virtue of Clause 3.15(F) of the lease.

In dismissing the appeals, the Court of Appeal held that Clause 3.5(iii) was void. An existing or contracting guarantor of a tenant could not in advance validly commit to guarantee the liability of a future assignee;

a guarantor of an assignor could not validly guarantee the liability of the assignor's assignee unless the guarantor was party to an authorised guarantee agreement which complied with s.16 of the Act or the guarantor was guaranteeing the liability of an assignee on a further assignment;

Clause 3.15(F) was valid but subject to Clause 3.15(E), namely that V could request a guarantor of equal or better financial standing to HoF where an assignment was made to a company within the HoF group.

Iqbal v Ahmed [2011] EWCA Civ 900

Thu, 13 Oct 2011 09:22:48 GMT

The case concerned C's claim against her deceased husband's estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The husband was survived by C, after marriage of 22 years, and D, son by an earlier marriage. The will gave C the right to occupy the matrimonial home but otherwise the property and the residual estate were given to D. C would be liable for the maintenance costs of the property. The judge below ruled that the will did not make reasonable financial provision for C who was entitled to a one-half beneficial interest in the property.

It is established law that maintenance was not the only or even dominant consideration when deciding what financial provision a spouse of the deceased should receive. Section 1(2)(a) of the Act provides that an applicant should receive such financial provision as it would be reasonable in all the circumstances for a spouse to receive whether or not required for their maintenance. Decisions under the Act as to what would constitute reasonable financial provision involved the exercise of judicial discretion. On appeal, the court should only interfere on well established grounds such as if the judge erred in principle or was plainly wrong. Testamentary provisions were to be respected, but subject to the need to ensure reasonable financial provision for the applicant.

On the facts of the case, the judge had not been wrong in awarding C a one-half beneficial interest and the court would not interfere with the order he made. D's appeal was dismissed.

John Hunter v. Helen Tindale, Sheriff Principal Mhairi Stephen, Edinburgh Sheriff Court, 22nd July 2011

Thu, 15 Sep 2011 19:19:00 GMT

Parties and Background
The pursuer (and appellant) and defender (and respondent) owned separate properties in a tenement block in Constitution Street, Edinburgh. A ‘pend’ or vennel formed a walkway through the building. The pend required remedial work to repair defective stonework. This was paid for by all of the owners of the block apart from the defender who disputed that she was liable for a proportion of the repair costs.

This was an appeal by way of stated case arising from a small claims hearing on 28th September 2010. The case had turned upon whether the pend could be classified as a ‘close’ in terms of the Tenement (Scotland) Act 2004. The sheriff had found that the pend was not a close because it did not comprise a passage, stair and landing giving access to two or more flats. As a result the pend was not part of the building and the defender was not liable for repair costs. The pursuer appealed to the sheriff principal.

Parties’ Submissions
The pursuer submitted that if the stonework had been allowed to deteriorate the structural integrity of the building would have been compromised. Under s.8(1) of the Tenement (Scotland) Act 2004 the owner of any part of a building has a duty to maintain supporting parts of the building.

The defender argued that the building did not form one set of premises. There was no right of access over the pend to other flats. The pend could not therefore be classified as a close and could not form part of the tenement building.

Decision
The sheriff principal found for the pursuer and allowed the appeal. The pend was not a close but could be described as a “sector” in terms of the 2004 Act. It therefore formed part of the tenement building and the defender was liable for repair costs.

The Reverend Donald Smith as Moderator of the General Assembly of the Free Church of Scotland and others v The Reverend John Morrison and others, [2011] CSIH 52

Wed, 24 Aug 2011 12:59:00 GMT

The facts

Inner House case considering a property dispute over Broadford Church and Manse on Skye between two factions of the Free Church of Scotland. A Feu Charter in 1869 set out the terms of trust in favour of Trustees for the “Congregation of the Body of Christians called the Free Church of Scotland in the Parish of Strath, Skye”.

In 2000 a split occurred when a substantial minority of the Church (the break aways) separated themselves from the rest of the Church (the majority) taking themselves outside the system of church government (although there was no difference between the factions on religious doctrine). The congregation at Broadford was divided and the majority brought an action for declarator that (amongst other things) the church and manse belonged to the majority rather than the break aways. They also sought a conclusion preventing the break aways from trespassing on and carrying out renovations to the manse

The decision

An extra division of the Inner House found in favour of the majority. It was clear from the trust deed that membership of and participation in the institutional structures of the Free Church was an essential feature of the trust. Whilst the break aways claimed that, following the division in 2000, they continued to adhere to the law and practice of the Free Church, they did not claim to maintain the continuity of the Church government system nor did they seek to argue that they remained part of the system of church courts. Participation in and membership of the system of church courts was the decisive principle on which the Broadford property was held on trust and the arguments put forward by the break aways were consistent only with the view that they had withdrawn from the system of church courts existing prior to the division.

General principles

After reviewing the authorities, Lord Drummond Young highlighted a number of principles and factors which would be taken into account when considering property disputes within churches. He noted that property rights will always be dependent on the circumstances of the individual case and in particular the terms of the trust agreement under which the property is held but also considered the following:

Majority rule

The principle of majority rule (ie that property should simply go to the majority of the money contributors on any division) was prevalent in older decisions but was rejected in the judgement of Lord Eldon in the House of Lords in Craigdaillie v Aikman (1813). Lord Drummond Yound also takes the view majority rule is unsatisfactory asking:

“In the first place, it is not clear who the majority are: are they the majority of the congregation, or the majority of the members (as against adherents) among that congregation, or the majority of the elders, or a majority of the money contributors? If the last of these, how are the contributions of the various contributors to be assessed? In the second place, and more importantly, the principle of majority rule would permit a bare majority of the congregation to effect a fundamental change in the doctrines taught in the church or the religious practices followed there.”

The distinction between church property congregational property

There is an important distinction to be made between property which is to be held for the general governing body or ecclesiastical judiciary of the church in question (especially from the funds of parties other than the parties in the congregation) and property which is to be held in trust for a congregation and its members. Church property must be used for the benefit of those whom the Church acknowledge as part of the church. Congregational property is the property of the congregation alone and the governing body has no interest or power over the property.

Adherence to fundemental doctrine

The court must scrupulously respect the religious opinions of the parties involved in the litigation especially the differences of opinion which the parties consider important. Those who adhere to the principles on which the congregation was united will not forfeit the property merely because a majority has decided otherwise. In the event of a division, the property held for a congregation will go to the part of the congregation which adheres to the fundamental principles of the church as identified in the churches original documents.

Those fundamental principles:

“may take a number of forms. Particular doctrines may be important, but so too may be a system of church government, and so may adherence to specific structures of church government.”

However, unsurprisingly, it seems that the most important principle is that the trust deed rules.

Peterborough City Council v Quereshi [2011] EWCA Crim 1584 Laws LJ, Beatson, Foskett JJ

Thu, 04 Aug 2011 16:01:30 GMT

The appeal concerned the prosecution of a landlord for offences under the Protection from Eviction Act 1977, section 1(3). There were numerous hostile acts against the two tenants of an HMO, including disconnecting services, family members moving into the property and various intimidating visits demanding the tenants leave the premises. None of the acts complained of were perpetrated directly by Mr Quereshi, but instead involved various family members.

To convict Mr Quereshi, there had to be proof that he carried out the relevant acts himself, or was responsible for the acts carried out by family members. His presence whilst others acted was insufficient. There was accordingly no case to answer. It was noted by the court that it may have been possible to establish guilt on the basis of incitement, joint enterprise or as a c-conspirator, but none of those allegations had been made by the prosecution.

NYK Logistics (UK) Limited v Ibrend Estates BV [2011] EWCA Civ 683 16th June 2011, CA

Thu, 04 Aug 2011 15:03:00 GMT

NYK Logistics (UK) Limited (NL), the appellant tenant sought to appeal against the decision of the court below that it had not terminated its lease in April 2009 by exercising a right under a break clause. Ibrend Estates BV (IE), the respondent landlord, argued that at the termination date in April 2009, NL had failed to deliver up “vacant possession” of the premises pursuant to NL’s obligations under the lease. NL had remained on the premises for a period of 6 days after the termination date to effect repairs to the premises in accordance with its obligations. NL contended that it had given up “vacant possession” of the premises in accordance with the break clause as it had no intention of excluding IE from access to and occupation of the premises.

It was held by Court of Appeal that the concept of vacant possession was not complicated. It meant what it does in every domestic and commercial sale in which an obligation to give “vacant possession” arose on completion; namely, that at the moment that “vacant possession” was required to be given, the property would be empty of people, and that the purchaser would be able to assume and enjoy immediate and exclusive possession, occupation and control of it. Further, the property would also be empty of any chattels, although the obligation in that respect would only be breached if any chattels left in the property substantially prevented or interfered with the enjoyment of the right of possession of a substantial part of the property.

Crown Estate Commissioners v Governors of Peabody Trust and another [2011] EWHC 1467 (Ch)

Thu, 04 Aug 2011 14:03:10 GMT

C sold to D1 (a housing association) their reversionary interest in a number of residential tenancies subject to the Rent Act 1977, those tenants (such as D2) now being tenants of D1. On the sale of the reversionary interest the tenants ceased to be regulated tenants under the Rent Act 1977; the question for the Court was what their present status was. C and D2 said they were secure tenants and also housing association tenants, D1 said assured tenants.

The case turned on the proper construction of s.38(5) Housing Act 1988. The Court considered that although the drafting of the relevant provision was not straightforward, to the point where it was not unreasonable to consider there had been a drafting error. Ultimately the wording of s.38(5)(d) was clear and included C as a public body for the purposes of s.38(1) and therefore by s.38(3) the tenancy was not capable of being a protected tenancy, secure tenancy etc and Sched 1, para 1 of the Act was disapplied. The tenants were now assured tenants of D1 pursuant to s.1 HA 1988. The status of the tenant’s security depended upon the protection that the new landlord was capable of giving under statute. D1 was not capable of granting secure or housing association tenancies.

Orkney Housing Association Limited v Moira Atkinson and Thomas Atkinson, A45/09

Thu, 14 Jul 2011 21:00:00 GMT

Sheriff court case concerning servitude rights over an access road near Dounby on Orkney. Orkney Housing Association owned former garage premises on the B9057. Mr and Mrs Atkinson owned a property known as Esgar and also an access road leading to it known as Esgar Road.

The title to the former garage was registered in the Land Register for Scotland and included a right of access over Esgar Road. The housing association built four houses on the property and created a parking area to the rear of the property. Access to the parking area was taken via Esgar road. When the houses were almost completed Mr and Mrs Atkinson put up some fence posts between the road and the parking area so as to prevent cars reaching the parking area. The housing association raised an action and obtained interim orders against Mr and Mrs Atkinson for the removal of the fence posts. They then completed the houses and sought damages for the loss of rental income incurred as a result of the delay in completion of the houses which they said was due to Mr and Mrs Atkinson’s obstruction of the parking area.

Mr and Mrs Atkinson counterclaimed arguing that the right of access did not exist having been abandoned or extinguished by prescription before first registration of the right in the land register. At first instance the sheriff allowed a proof, appearing to be of the view that the defences were relevant, in that, if the Mr and Mrs Atkinson were able to persuade the court that the right of access had been abandoned or extinguished before first registration, then they would be entitled to seek rectification of the register.

The housing association appealed. They contended that (in terms of the Land Registration (Scotland) Act 1979) their land certificate was conclusive of the extent of the rights over Esgar Road and the right of access could only be affected if the Keeper was capable of rectifying the register. As the housing association were proprietors in possession of the property, the register could not be rectified to their prejudice (s9 of the ‘79 Act).

The sheriff principal agreed with the housing association’s arguments. The starting point was the description of the subjects in the property section of the housing association’s title sheet:

”Subjects THE GARAGE, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan, together with a right of access for all purposes over the road commonly known as the Esgar Road”.

So long as this description remained unaltered, the housing association had a right of access over the access road. Even if the Keeper had included the access right in error, the housing association as the current proprietors of the subjects would remain entitled to the right of access unless and until the error was corrected by rectification of the register.

The question then was whether it was open to the Keeper to rectify the register (or for the court or the Lands Tribunal for Scotland to order him to do so).

The answer to that question depended on:

whether the housing association was a proprietor in possession within the meaning of section 9(3) of the ’79 Act;
whether, if it was a proprietor in possession, it would be prejudiced by rectification, and
whether any of the exceptions to the prohibition on rectification against a proprietor n possession applied (ss 9(3)(i) to (iv) of the ‘79 Act).

Having considered the authorities, the sheriff principal found that the housing association were proprietors in possession. It was also plain that they would be prejudiced (and it would have made no difference if, as was argued for Mr and Mrs Atkinson, the prejudice was not “particularly significant”). It was also found that none of the exceptions to the ‘proprietor in possession rule’ applied.

The Keeper would not therefore be entitled to exercise his power to rectify the register by deleting reference to the right of access and nor would either the court or the Lands Tribunal be entitled to order him to do so. It was therefore of no relevance that the right of access may have been extinguished/abandoned and included as the result of an error on the part of the Keeper.

Crieff Highland Gathering Ltd v. Perth and Kinross Council, [2011] CSOH 78

Tue, 12 Jul 2011 17:31:58 GMT

Case considering a landlord’s right to terminate a lease for breach of the maintenance obligations under the lease. Crieff Highland Gathering are the landlords and Perth Council, the tenants of an area of ground known as Market Park in Crieff. The subjects are used by the Council as a pubic park and sub-let back to Crieff Highland every year for the holding of the Crieff Highland Gathering. The lease is for 60 years and began in 1983. The rent is £100 per year and was not subject to review (although it appears that the rent was never demanded or paid). Importantly, the lease contained no irritancy clause.

Background

The Council wished to retain the park as public open space. However, Crieff Highland wanted to sell the park for development as a site for a Sainsbury’s supermarket. They had entered option agreements with developers which would allow for the sale of the park and development of an improved sports ground at an alternative site. They had also been granted outline planning permission for the two developments.

Crieff Highland had also been dissatisfied and frustrated by what they considered to be slow and inadequate maintenance of the park particularly in relation to the boundary walls. In November 2007 (when it became clear that the Council was unwilling to relinquish the tenancy of the park) Crieff Highland served a notice on the Council intimating “numerous wants of repair within the subjects which fall within the tenant’s responsibility in terms of the lease” and an Interim Schedule of Dilapidations. The notice purported to require that the wants of repair be remedied within 3 calendar months and warned that if the Council failed to comply the lease might be terminated.

The Council did not carry out the repairs which it did not consider to be urgent. On 22 January 2009 Crieff Highland served a further notice on the Council purporting to terminate the lease on the basis of the Council’s breaches of the lease. The Council then arranged an independent inspection of the premises and carried out repairs between July and September 2009. Crieff Highland was not satisfied with this and began court proceedings against the Council.

The issues

The main legal issues for the court were as follows:

Was the Council in breach of its obligations as tenant under the lease?
Was Crieff Highland entitled to terminate the lease?

The decision

Lord Pentland found that the Council was in breach of its obligations under the lease but concluded that the breaches were not material and therefore Crieff Highland were not entitled to terminate the lease.

Breach of the obligations

There was debate as to whether the tenant’s obligations under the lease extended to extraordinary repairs as well as ordinary repairs. The relevant clause said:

“The Tenants shall, during the currency of this lease, relieve the Landlords of their whole responsibility for the maintenance of the boundary fences, walls and others enclosing the ground leased.”

The Council argued that use of the word “maintenance” meant something other than extraordinary repairs. However, Lord Pentland rejected those arguments taking the view that, when read in the context of the lease as a whole, the clause was referring to the liability which would otherwise be incumbent on the landlord for maintaining the boundaries and that would include liability for carrying out extraordinary repairs. On the evidence, the Council had breached its repairing obligations under the lease.

Materiality of the breach

With regard to the materiality of the breaches, Lord Pentland noted that it was primarily a question of fact and degree. In coming to the conclusion that the various breaches were not material Lord Pentland took account of the following:

The fact that both parties were able to make full and uninterrupted use of the park which did not have to be closed to the public as a result of the condition of the property.
The shortcomings were not of such fundamental gravity to touch on the very existence of the contract. There was no evidence that Crieff Highland considered carrying out the works themselves with a view to recovering the costs from the Council or of taking an action for specific implement to force the Council to carry out the works nor even did Crieff Highland take steps to call a formal meeting (which it could have done under a procedure contained in the lease).
The lease was a long one with over 30 years left to run. The tenant had carried out repairs, had co-operated well with Crieff Highland in preparing for the Highland Gathering in 2010 and had expressed its intention to continue to run the park as a public facility and fulfil its obligations under the lease. (Indications of the Council’s future intentions are of importance because the courts have traditionally been reluctant to allow a rural lease without an irritancy clause to be brought to an end in circumstances where the tenant has made it clear that it intends to perform its side of the contract during the remaining period of the lease- see below.)
Taking a step back from the detailed evidence and trying to take a “realistic” view of matters, Lord Pentland’s impression was that the problems were not particularly serious in the overall scheme of things. He took into account that the cost of the repairs amounted to just over £9,000 and that the overall condition of the subjects seemed to be adequate for them to be used without significant difficulty (he was not persuaded that the deficiencies detracted in any substantial sense from the value and utility of the subjects.)

The following issues were also considered:

The relevance of the Council’s willingness to perform in the future

Lord Pentland contrasted the right to rescind for material breach with the right to irritate. Whereas the right to irritate applies to a right to terminate for a past breach (and derives from the lease or by law for failure to pay rent), the right to rescind applies to a right to terminate for a refusal by the tenant to perform in the future (and derives from the common law).

The landlord can only rescind for material breach when the following conditions are satisfied:

The tenant has committed a material breach;
The landlord has given fair and reasonable opportunity to fulfil the obligations; and
The tenant has indicated that it will not perform in the future.

It had been established that Crieff Highland had failed on 1 and 3. However, Lord Penrose also went on to consider whether Crieff Highland had given fair and reasonable opportunity to fulfil the obligations.

The adequacy of the termination procedure adopted by Crieff Highland

Lord Pentland said that the notice must give both reasonable notice of the grounds for the termination and also an adequate opportunity to put it right. The notice given by Crieff Highland was deemed to have given reasonable notice of the grounds but Lord Pentland found that the 3 month period was not sufficient. In that time the Council had to carry out an inspection, take legal advice, consult Historic Scotland, identify a contractor (who would have to inspect and prepare a programme of works. Evidence was heard to the effect that the works could not be done in the 3 months following the notice due to difficulties in repairing lime mortar in the winter.

Would a fair and reasonable landlord have terminated the lease in the circumstances?

If Crieff Highland had been in material breach the next question would have been whether a fair and reasonable landlord would have terminated the lease. This requirement arises from s 5(1) (b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. Although he did not require to decide on it, Lord Pentland found that in this case a fair and reasonable landlord would not have terminated the lease because:

The ultimatum of 3 months was too short
The repairs were not sufficiently serious to justify termination (especially in view of the 30 year term)
A fair and reasonable landlord will not opt for termination where there are other remedies available which would not deprive the tenant of its interest but nevertheless adequately protect the landlord’s interest. In this case Crieff Highland could have considered carrying out the works themselves and recovering the expenses from the Council or it could have followed a formal meeting procedure provided for in the lease.

Looking at the circumstances as a whole Lord Pentland found that it was reasonable to infer that Crieff Highland’s reason for terminating the lease was that it wanted to proceed with the arrangements it had entered with Sainsbury’s rather than having a pressing concern over the condition of the property.

Co-operative Insurance Society Limited v. Fife Council, [2011] CSOH 76

Tue, 12 Jul 2011 17:15:08 GMT

Case considering a tenant’s liability for extraordinary repairs under a lease. Co-operative Insurance were the landlords and Fife Council were the tenants under a 25 year lease of the Unicorn house at the Kingdom Centre in Glenrothes. The Co-op claimed that the Council had breached their repairing obligations under the lease and sought damages of more than £1.3m. The matter for the court to decide was the relevancy of the Council’s argument that they were not liable for “extraordinary repairs” under the lease

The repairing clause contained the following:

“At their own cost and expense to repair and keep in good and substantial repair and maintained, renewed and cleansed in every respect all to the satisfaction of the Landlords the leased subjects”

The Co-op accepted that at common law a tenant is only liable for “ordinary repairs” and the responsibility for “extraordinary repairs” (such as the rebuilding or renewal of the subjects and making them wind and watertight) is normally that of the landlord. To make it the responsibility of the tenant would require clear stipulation or necessary inference. However, they argued that in this case the lease did make it clear that the tenant was liable for extraordinary repairs. The Co-op relied on the extent of the subjects included in the lease (which comprised the whole of the external walls and roof) and the fact that the repairing clause included an obligation to “renew” as well as to “repair”.

On the other hand, the Council contended that many of the repairs identified by the Co-op arose as a result of the impending expiry of lifespan of component parts of the property and both parties would have been aware that the lifespan of the parts in question was not much greater than the length of the lease. If it had been intended that the Council were to replace all such parts at the end of the lease it would have been made unambiguously clear.

Lord Glennie was not persuaded that the lease imposed liability on the tenants for extraordinary repairs. Indeed the clause did not go beyond the common law position. To argue that use of the word “renewed” meant that the tenants had assumed responsibility for “extraordinary repairs” put too much emphasis on the word renewed. As part of an obligation to repair the tenant may be obliged to renew certain elements in the structure but that is part of the repairing obligation.

If the Co-op’s arguments had been correct the lease would also have obliged the Council to give the property back at the end of the lease in as good condition as it had been 25 years earlier. They would have been obliged to renew parts even though they were not in need of repair. Whilst Lord Glennie agreed that it was possible to impose such an obligation, the intention would have to be made clear.

Although there were provisions in the lease which appeared to place responsibility on the tenants for structure that did not alter Lord Glennie’s opinion that the lease did not make the tenant liable for “extraordinary repairs”.

Elin Kristina Dalgleish or Willemse and Robin Alexander Willemse v. Michael Craig French & others [2011] CSOH 51

Thu, 07 Jul 2011 21:59:54 GMT

The pursuers were the proprietors of a house and garden, set in a terrace of cottages in Dunblane. The defenders were proprietors of three cottages surrounding that of the pursuers. A private road ran around these cottages.

In this action, the pursuers sought declarator that, in terms of their Land Certificate, they had (a) a right in common with the defenders to vehicular and pedestrian access to the road, or alternatively, (b) a servitude right of way for vehicular and pedestrian access to the road. The pursuers also sought an interdict to prevent the defenders from stopping their use of the road and/or mounting barriers over the road to protect their own exclusive use. The defenders denied that the pursuers had any common right to the access road and also plead that any right to servitude for vehicular access had been formally extinguished by negative prescription or abandonment.

Having determined that the court should not, in these circumstances, breach the “curtain” principle (to examine prior title sheets to aid interpretation), the court interpreted the title sheet of the pursuers’ Land Certificate, without any prior reference to historical material. As a matter of interpretation, the court found that the pursuers were not entitled to any common property in the access road, nor did it afford them any common interest. The court instead found that the use of the word “access” in the title sheet afforded the pursuers a servitude right of way; the court found the meaning here was clear and unambiguous. The court permitted the question of whether such a servitude right had prescribed, to be decided at proof.

Propinvest Paisley LP against a decision of the Lands Tribunal for Scotland dated and communicated to the parties on 17 September 2010

Wed, 06 Jul 2011 22:32:57 GMT

Case considering the competency of the Lands Tribunal to discharge or vary conditions in a

registrable lease in terms of s90 of the Title Conditions (Scotland) Act 2003.

The Co-operative Group, who were tenants under a 125 year lease of subjects at the Paisley

Centre, sought to discharge or vary certain provisions including restrictions on the use of

the property and a “keep open” clause contained in the lease.

The Lands Tribunal had rejected Propinvest's (the landlord) preliminary arguments that it

had no jurisdiction to vary or discharge the conditions. However, an extra division of the

Inner House held that the Lands Tribunal had “gone too far, too fast and on inadequate

foundation” in rejecting Propinvest’s challenge to their jurisdiction.

The Inner house found that the Tribunal had not applied their minds to a significant aspect

of the decision in George T Fraser Limited v Aberdeen Harbour (1985). It was clear that the

legislature did not intend all title conditions in registrable leases to be susceptible to

the Lands Tribunal’s jurisdiction[1] and, in Fraser, the Lord President (Emslie) had[2]

identified two potential areas of limitation:

1) that the condition must “relate to land”; and

2) that there must be an obligation. i.e. a burden on an established right.

With regard to the second area of limitation, the court in Fraser had held that the Lands

Tribunal had no jurisdiction to interfere with a clause which, by excluding assignees

without the landlords consent, essentially defined the tenant’s identity from the outset.

Such a clause was not a true burden just an important delimitation of the initial grant.

The Inner House found that, when rejecting Propinvest’s challenge to its jurisdiction, the

Lands Tribunal had not considered the second aspect of the Fraser decision and had failed

to consider whether Fraser laid down a principle of general application which should have

been followed. Fraser was plainly of high authority and it was at least arguable that the

court there did seek to identify a principle of general application.

The Inner House sustained Propinvest’s appeal and allowed a proof before answer on all

aspects of the dispute including whether the Co-operative Group could bring their

application within the proper scope of the Land Tribunal's jurisdiction noting that a

decision should not be reached without the fullest consideration of the Fraser decision.

______________________________________________________________________________

[1] In terms of s90 of the 2003 Act the Lands Tribunal can vary or discharge title

conditions. A title condition is defined (in s122) as “(a) a real burden (b) a servitude…

(d) a condition in a registrable lease if it is a condition which relates to the land (but

not a condition which imposes either an obligation to pay rent or an obligation of relief

relating to the payment of rent).

[2] When considering the discharge or variation of leasehold conditions under the

Conveyancing and Feudal Reform (Scotland) Act 1970 from which the powers in the 2003 Act

are derived.

Mrs Elsie Black v Frank Duncan and Mrs Duncan, Sheriff Malcolm Garden, Aberdeen Sheriff Court, 16 May 2011

Tue, 05 Jul 2011 22:25:00 GMT

In this action arising from a neighbour dispute, the pursuer sought two interdicts and an order for removal and restoration in respect of a common drying green. Prior to 2008, the defenders erected a post and mesh fence dividing the green into two parts, without the pursuer’s consent. No formal objection was taken. In June 2008, the pursuer’s solicitors wrote to the defenders indicating the pursuer’s willingness to allow the existing fence to be replaced and around November 2008, the defenders had contractors remove the existing fence and erect a large metal fence. The fence was erected on a different line to the earlier fence, significantly increasing the area fenced to the side of the defenders' property. The pursuer’s solicitor advised her not to intervene until construction was completed and no formal objection was raised until 10 December 2009, when the present action was served on the defenders. On 21 January 2010, the pursuer’s solicitors wrote to the defender’s solicitors, withdrawing the offer to consent to a replacement fence.

It was submitted for the pursuer that all proprietors must agree to erection of the fence and there was no such agreement. The pursuer was concerned that removal of the fence would result in the nuisance of the defenders’ dogs being allowed to enter and foul the green. Although she had been prepared to allow a replacement fence to allow the defenders to use an area of the green for their dogs, they had put up a fence in a different location. This was not a ‘replacement’. The pursuer was entitled to withdraw any agreement to the erection of a fence, and had done so. The pursuer’s rights were being denied. A 21 day period would be reasonable for restoration.

It was submitted for the defenders that they had received permission to erect the fence. The pursuer was personally barred as she knew of the alteration. The fence had been completed without any objection until the raising of the action over a year later. Each proprietor was entitled to make normal use of common property and use of the green for toileting of pets was a normal usage. It was fully accepted that the pursuer had every right to go through the gate and use both sides of the green. There was no basis for interdict.

The Sheriff was satisfied that there was no evidence that the pursuer consented to the erection of the first fence. Consent was then offered for a new fence on the line of the old fence and nothing more. The pursuer had not consented to the fence in its present position. The delay in formal objection did not justify loss of the pursuer’s heritable rights. The Sheriff ordained the defenders to remove the fence within 42 days and interdicted them from any further erection without consent.

The Sheriff noted both parties acceptance that in absence of any agreement to the contrary, co-owners of common property may make only ordinary use of the property. In the Sheriff’s view, the use of a drying green for exercising or toileting of dogs was not ordinary. It was an extraordinary and unacceptable use and unquestionably a nuisance. The Sheriff interdicted the defenders from allowing dogs to exercise, defecate or urinate on the drying green.

The issue of removal costs incurred by the pursuer in the event of the defenders’ non compliance was reserved and the case put out for a hearing on expenses.

Oxford City Council v Bull [2011] EWCA Civ 609

Fri, 01 Jul 2011 12:16:29 GMT

The Court of Appeal unanimously dismissed the appeal on ground one, but allowed the Council's appeal on ground two.

Ground one: the Court found that on the facts the children clearly resided in Mr Bull's room, keeping their clothes and possessions there and going to school from that address. Jackson LJ stated at [41] that s189(1)(b) had two limbs, namely “reside” and “might reasonably be expected to reside”, and whilst questions of resources must be relevant in determining what might reasonably be expected under the second limb, it was the first that was in question in this case, which was a matter of fact, and scarcity of resources could not be a relevant consideration.

Ground two: the Court found that in August 2009 Mr Bull had perfectly satisfactory accommodation and the children were not only not living with their father but were not reasonably expected to do so. Mr Bull's property was therefore “available” within the meaning of s.176. The Court was required to look towards the future as well as the present, but on the facts it was reasonable for the three children to remain living with their mother, it was not reasonable for them to move in with their father who had nowhere to accommodate them. Mr Bull's own deliberate conduct had led to his enforced departure from the shared house, and he was therefore intentionally homeless.

Kahlon v Isherwood [2011] EWCA Civ 602

Fri, 01 Jul 2011 12:15:36 GMT

The Court of Appeal considered whether an assured shorthold tenancy could be executed, notwithstanding the failure to serve notice pursuant to the Housing Act 1988. The Court found that a comparison between the prescribed form and the Tomlin schedule disclosed a number of relevant and material omissions, which related to matters of substance, and that the form was therefore not a form substantially to the same effect.

Grand v Gill [2011] EWCA Civ 554

Fri, 01 Jul 2011 12:14:43 GMT

The Claimant appealed on the ground that Quick v Taff Ely Borough Council had been misapplied as judge had not awarded additional damages for the landlord's failure to repair the plaster itself which had been damaged by the damp.

Rimer LJ held that the key question was whether the plaster could be said to be part of the ‘structure' of the flat, in which case damages would flow from its disrepair. He disagreed with the decision of Mr Recorder Thayne Forbes QC in Irvine v. Moran (1992) 24 HLR 1 that internal plaster was “merely a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse”. The plaster was itself a smooth constructional finish to which decoration could be applied and therefore formed part of the ‘structure' for the purposes of Quick. The damages were therefore increased to include an additional £750 for the disrepair to the plasterwork.

Gladhurst Properties v Hashemi [2011] EWCA Civ 604

Fri, 01 Jul 2011 12:13:45 GMT

The Court of Appeal considered whether, for the purposes of the Housing Act 2004 “deposit protection provisions”, a “tenant” means a current tenant and whether proceedings can be commenced by the tenant after the end of the tenancy and whether the tenants can sue individually or must do so collectively. The question arose whether a a tenant whose tenancy has ended and whose deposit has not been protected by one of the statutory schemes seek relief under section 214(3) & (4) of the Housing Act 2004 and so claim the return of the deposit or payment of the same into an authorised scheme. Such redress would also garner the “three times the deposit” penalty for the tenant.

It was held that the grounds for a s 214 claim will cease to exist once the lease has expired and so no order under either s 214(3) or (4) can be made after that date. Patten LJ also stated that where there was more than one tenant, a s 214 claim should be made by them all unless the court otherwise ordered.

Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion S.A. [2011] EWCA Civ 607, 18th May 2011

Fri, 01 Jul 2011 12:11:35 GMT

In dismissing S's application, the Court of Appeal held:

In its Defence S sought to rely on principles of proprietary estoppel and reliance on representations made by E. If an estoppel was established, it was at the court's discretion to determine the scope and nature of the equity that arose. Importantly, the court had to be mindful that the equity did not interfere with the parties legal rights to a greater extent than necessary to give proper effect to the representations on which the estoppel was based.

The underleases did not grant S the right to place anything on the roof of the block even with E's consent, qualified or otherwise. It would be artificial, inappropriate and unjust to determine the position between S and E as if such a qualified right existed. Yet, if such a right had existed, it would have been appropriate to consider the reasonableness of E's refusal of consent.

E was entitled to take a cautious line as to G's attitude. E could not be expected to put itself at risk by giving consent to something that may expose it to a claim for breach of covenant. Furthermore, consideration of G's attitude at the material time shows that it aired concerns as to the size and visibility of the air-conditioning units and the possibility of opening the flood-gates to similar requests by other tenants.

On the evidence there was nothing to suggest that G would have acceded to S's request if approval had been sought by E. In the circumstances, E had correctly obtained summary judgment on the claim.

Ralph Lauren London Limited v The Mayor and Burgesses of the London Burgh of Southwark as Trustee of the London Burgh of Southwark Pension Fund, [2011] CSOH 103

Tue, 21 Jun 2011 20:49:10 GMT

Outer House case in which a tenant (Ralph Lauren) of premises on Ingram Street in Glasgow sought to prevent the landlord (the pension fund) from letting a neighbouring unit (Unit 6) to a hairdressing salon on the basis of an obligation contained in a back letter.

The back letter granted by the pension fund provided:

"We shall not grant first lettings of that one of the Commercial Units (as defined in the Lease) known as Unit 6, situated to the north of that one of the Commercial Units let as at the date hereof to All Saints Retail Ltd, to retailers other than high quality fashion retailers as are approved by you (such approval not to be unreasonably withheld or delayed)."

Ralph Lauren sought an interim interdict on the basis that the hairdressing salon was not a high quality fashion retailer. On the other hand, the pension fund argued that, in terms of the back letter, as the hairdressing salon was not a retailer, Ralph Lauren's permission was not required.

Ralph Lauren contended that the pension fund’s interpretation would permit the landlord to let the premises to anyone who did not sell goods which they argued was an absurd consequence given the context in which the undertaking had been given. As a result, they urged that back letter should be construed in a commercially sensible, rather than a purely literal, way.

However, Lord Glennie agreed with the pension fund's arguments and found that the letter

did not restrict the pension fund with regard to lettings to non-retailers (noting that it was "nigh impossible" to describe a hairdresser as a retailer). Whilst it was "permissible to do some slight violence to the language of a clause in a contract where a literal construction would defeat what is objectively the intention of the parties to it", there was no basis for applying that approach in this case. There was nothing to suggest that the parties had intended a restriction on all lettings other than high quality fashion retailers. There was no evidence to suggest that a high quality fashion retailer such as Ralph Lauren would consider themselves to be prejudiced by the letting of a neighbouring unit to, for example, a restaurant or a cafe. If they had wished to prevent such a letting it would have been easy to address it in the undertaking.

Lord Glennie came to the conclusion that Ralph Lauren had not shown that they had a prima face case and refused the motion for interim interdict although leave to reclaim was granted.

Landmore Limited v. Shanks Dumfries and Galloway Limited, [2011] CSOH 100

Mon, 20 Jun 2011 14:42:00 GMT

Case considering the meaning of “waste” in terms of the lease of a landfill site near Stranraer. The lease provided that the tenants (Shanks) were to make royalty payments to the landlords (Landmore) for “inert waste” entering the site.

The question for the court was whether soil which had been brought on to the site for the purpose of capping cells of waste deposited at the site was also “inert waste” and therefore subject to the royalty payment.

Lord Menzies found that the soil was “inert waste”. In coming to that conclusion, he noted that the exercise was one of construction of a private commercial contact and thus differed from cases in which the courts were construing EU directives or regulations (albeit he noted in passing that the decision he reached was in line with authorities concerned with the interpretation of the EU regime).

The soil came from a construction site on which houses were being built. It was discarded by the developer who paid haulage contractors to take it away and was an unwanted by product caused by the need to provide flat foundations for the houses. Nothing was done to it before it entered the landfill site. As such, Lord Menzies took the view that the soil fell within the ordinary and natural meaning of “waste”. Although it was useful to Shanks, Lord Menzies did not consider that it was appropriate when considering the parties intentions objectively to view the situation from the perspective of the potential user of the material pointing out that anything –or almost anything –can be put to use by someone.

“Having consumed all the meat from a roast leg of lamb, I may discard it into my household rubbish. It is useless to me. My dog may have a different view of its usefulness, and may retrieve it for his own purposes – but despite its usefulness to him, it remains waste.”

oger Williams & OR’s v Redcar Limited & OR’s [2011] EWCA Cave 466 20/04/2011

Fri, 10 Jun 2011 00:41:56 GMT

The appellants Mr and Mrs Williams (W) sought to appeal an earlier decision of the Court of Appeal whereby Lewison J determined that a contract for the sale of residential property entered into with the first respondent company, Redcar Ltd (R), had been properly executed. Lewison J held that a reasonable reader of the documents would have understood that the signatures of the authorised signatories contained in the agreement were made both on their own and R’s account. W contended that without express words indicating that the authorised signatories were signing “by or on behalf of” R as distinct from signing in their personal capacities on the sale of their leasehold interests, the agreement had not been properly executed in accordance with s.44(4) of the Companies Act 2006.

In précis, R was the owner of the freehold interest of 5 residential flats let on long leases (“the Property”). The leaseholders of the property were also the directors and shareholders of R. W purportedly agreed to purchase the freehold interest from R and the leasehold interests from the individual leaseholders and subsequently entered into a contract for sale and supplementary agreement to that effect. R was defined as a “seller” and W as the “purchaser” in those documents. The supplementary agreement bore various signatures under the words “SIGNED….SELLER” including those of two authorised signatories of R who were also defined as sellers in respect of their leasehold interests. W subsequently refused to complete the purchase of the property on the grounds that the agreement had not been properly executed by R because in the absence of a common seal, the documents should have contained words expressly stating that the signatures of the authorised signatories were “by or on behalf of” R pursuant to s.44 of the Companies Act 2006.

In dismissing W’s appeal, the Court of Appeal held that a company entering into an agreement to sell its freehold interest in residential property did not require the express use of the words “by or on behalf of” the company to validly execute a contract for sale under s.44 (4) of the Companies Act 2006. The requirements under the relevant section were satisfied if the agreement was signed by authorised signatories of the company and the company was clearly defined by the term “seller” under the agreement.

Potts v Densley & Anor [2011] EWHC 1144 (QB) 06/05/2011

Fri, 10 Jun 2011 00:40:20 GMT

Mrs Justice Sharp gave judgment in an appeal concerning Tenancy Deposit Schemes and the application of sections 213 and 214 of Chapter 4 of Part 6 of the Housing Act 2004 (“the Act”). The first instance hearing pre-dated Tiensia v Vision Enterprises Ltd (t/a Universal Estates) and Honeysuckle Properties v Fletcher and others [2010] EWCA Civ 1224.

In this case, the tenant paid the deposit late, after she had given notice of termination of her tenancy. She refused the landlord’s offer to pay back the deposit directly to her, insisting it be paid into a custodial scheme. Eventually, it was paid into the scheme two days after the tenancy had been terminated and the tenant brought a claim for compensation under the Act.

At first instance it was held that there had been a technical breach of the requirements of the Act as it was not possible to comply with the provisions of the Act after the tenancy had come to an end, but that it was not in the interests of justice to impose the statutory penalty.

On appeal, it was accepted that once a breach had been found, there was no discretion as to the application of the statutory penalty. The penalty must follow any breach. However, applying Tiensia it was held that it was possible for the former landlord to comply with the requirements of the Act right up to the date of the hearing. Even where the tenancy had ended, the former landlord was still ‘landlord’ for the purposes of the Act and remained obliged to comply with its provisions and subject to the penalties therein. As the landlords had eventually complied with the Act, they had a complete defence to the claim.

Yemshaw (Appellant) v London Borough of Hounslow (Respondent), [2011] UKSC 3, 26/01/2011

Fri, 11 Feb 2011 00:01:27 GMT

The issue in this case is what is meant by the word “violence” in section 177(1) of the Housing Act 1996. Is it limited to physical contact or does it include other forms of violent conduct?

In August 2008, the Appellant left the matrimonial home in which she lived with her husband, taking her two young children with her, and sought the help of the local housing authority. In interviews with housing officers, she complained of her husband’s behaviour, which included shouting in front of the children, and stated that she was scared that if she confronted him he might hit her. The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. On a review, the panel noted that the root cause of her homelessness was not that she had fled after a domestic incident. The panel believed the probability of domestic violence to be low. They concluded that it was reasonable for her to continue to occupy the matrimonial home. The Respondent local authority accepted that the housing officers and review panel had applied the Danesh meaning when deciding that the appellant was not homeless within the meaning of the 1996 Act.

The Supreme Court unanimously allows the appeal and sends the case back to be decided again by the local housing authority. Lady Hale gives the leading judgment. The Court holds that “domestic violence” in s. 177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.

Andrew David Bird v. Bank of Scotland plc [2010] CSOH 162

Mon, 03 Jan 2011 23:33:16 GMT

In October 2000, the pursuer instructed a solicitor, Mr Russell Taylor, to act on his behalf in a purchase of property. The pursuer intended to purchase the property with the benefit of a loan from the defenders which was to be secured against the property by the grant of a standard security by the pursuer in favour of the defenders.

It was averred that although Mr Taylor was instructed to purchase the property in the name of the pursuer, in fact he concluded missives for the purchase of the property by a company in which he had an interest, namely Yearcom Limited, at a price of £170,000. He executed a certificate of title and sent it to the defenders with a request for payment of loan funds of £209,077. He fraudulently induced the pursuer to execute a standard security in favour of the defenders, which contained a personal obligation on the part of the pursuer to repay any monies advanced to him by the defenders. The defenders paid the loan funds to Mr Taylor, who used them for his own purposes.

Between about November 2000 and October 2004 the pursuer had paid monthly mortgage payments to the defenders which, together with a loan arrangement fee, totalled £65,100. In the present action, the pursuer sought (1) reduction of the standard security granted by him in favour of the defenders on the ground that he was induced to execute it by the fraudulent misrepresentations of the defenders' agent Mr Taylor, (2) repetition of the monies paid by him to the defenders in error, or in the alternative (3) damages of £300,000 in respect of the fraudulent misrepresentations of the defenders' agent Mr Taylor.

The defenders resisted these claims, and denied that Mr Taylor was acting as their agent when advising the pursuer to execute the standard security and when making any representations to him. In their counterclaim the defenders sought payment of the sum of £317,961.62, being the amount of principal and interest due to them in respect of their loan to the pursuer.

The parties agreed that Mr Taylor was not acting for them jointly; rather, at some points, he was acting as agent for the pursuer, and at others, as agent for the defenders. The court’s task was to analyze whom Mr Taylor was acting for at the relevant points. Preferring the analysis of the defenders, the Lord Ordinary found that Mr Taylor was instructed by the pursuer in respect of the purchase of the property; he was not acting as agent for the bank in this transaction, which was (or which Mr Taylor held out to be) between the pursuer and the vendors. In the transaction for the loan of monies from the defenders to the pursuer however, Mr Taylor was at different times acting in his capacity as agent for the pursuer, and at other times acting in his capacity as agent for the defenders.

When obtaining a first ranking standard security over the property, the court concluded that Mr Taylor was acting as agent for the bank, as the document was essentially designed to protect the bank’s interest. However, when the funds were transferred from the bank to Mr Taylor, the court concluded that the money had been transferred to him in his capacity as agent for the pursuer.

Having regard to the general rule that a principal cannot take advantage of the fraud of his agent, the court concluded that the standard security fell to be reduced, on the basis that the bank could not benefit from Mr Taylor’s fraud. However, the court held that reduction of the standard security did not affect the contract of loan between the defenders and pursuer. As the contract of loan remained intact, the court found the pursuer was not entitled to repetition of the sums paid by him to the defenders, and conversely, that the defenders would be entitled to payments due to them in terms of the contract of loan. The court held that while the existence of a personal bond might (or might not) have given the defenders security for their loan, it did not follow from the absence of a valid standard security and personal bond that no contract of loan existed.

John Hunter v. Mrs Helen Tindale, Sheriff N M P Morrison QC, Edinburgh Sheriff Court, 16 November 2010

Tue, 16 Nov 2010 21:29:14 GMT

The defender was the owner of a pend at 123 Constitution Street, Edinburgh. She was sued by the pursuer, an assignee, for the sum of £677, as a proportion of the costs of repairs to part of a tenement at 121 to 125 Constitution Street, Edinburgh. The pend was number 123 Constitution Street. The property at number 125 extended over the pend from the first floor level and abutted number 121. There was an archway over the pend, forming part of the facade of numbers 121 to 125. The facade extended to and adjoined the roof. The pend gave access to a courtyard at the rear, including a workshop at the rear of number 125 which formed part of the basement of 125 Constitution Street. There was also a right of access over the pend to and from that workshop.

The dispute centred on the interpretation of the Tenements (Scotland) Act 2004, and whether the pend formed part of the tenement. Part of the pediment of the archway over the pend, and where it joined the wall of number 121, was in need of repair. The work was done. The only person who had refused to pay a share of the cost of repair was the defender. It was agreed by the parties that if the pursuer's interpretation of the law was correct, the defender owed the sum sued for to the pursuer. If the defender's interpretation was correct, the money was not due.

The pursuer submitted that the pend did form part of the tenement, with specific reference to section 29(1) of the 2004 Act, and its definition of “close”. Conversely, the defender argued that the pend was distinct from the common close and the definition in section 29(1) excluded it because there was no common access to two or more flats. Moreover, it was submitted that the pend carried no rateable value and carried no burden.

The Sheriff agreed with the submissions of the defender. The court agreed that the pend was not part of the solum and land pertaining to the tenement building which surrounded it. Moreover, the court interpreted section 29(1) as requiring a passage and stairs and landings to fit within its definition. The pend would only be a “close” if all three existed to constitute access; this was not the case. The Sheriff ruled that the 2004 Act does not facilitate a claim to be made against the defender and accordingly assoilzied the defender.

Strathclyde Business Park (Management) Ltd v BAE Systems Pension Funds Trustees Ltd, Sheriff C.N. Stoddart, Hamilton Sheriff Court, 14 September 2010

Thu, 04 Nov 2010 22:47:58 GMT

The respondents in this appeal were the Promoters of Strathclyde Business Park. The respondents had previously been granted an interim interdict against the appellants, to prevent the breaching of a provision within a Deed of Declaration of Conditions, registered on 29 July 1991. The relevant provision prohibited the erection of signage on building within the business park, without written consent of the respondent. The appellants challenged the granting of interim interdict by the Sheriff at first instance, arguing that there was no prima facie case, and that the Sheriff had erred in his assessment of where the balance of convenience lay.

It was conceded by both parties that these conditions were now “community burdens” in terms of the Title Conditions (Scotland) Act 2003. The appellants argued firstly that the respondents had not sufficiently averred title to sue under sections 8 and 28 of the 2003 Act, those provisions referring to the “owner” of the premises, rather than its Promoter, and secondly that they did not have authority to sue as the agents of the owner, no appointments having been made under the Deed of Declaration of Conditions. Moreover, the appellants argued that while Clause 11 of the Deed provided the Promoter could grant written consent for the erection of signage, section 73(2A) of the 2003 Act provided that a provision setting out the terms of a real burden will require to be disregarded, if a person other than the person entitled to enforce the burden might waive, mitigate or otherwise vary a condition of the burden. Agreeing with these submissions, the court accordingly held that the respondents lacked a prima facie case.

The court held as there was no prima facie case, it was not necessary for the Sheriff at first instance to consider the balance of convenience in this case. Appeal allowed.

Abdul Aziz v. Gillian Leslie Whannel [2010] CSOH 136

Sun, 10 Oct 2010 20:47:39 GMT

Debate:- This debate was brought at the instance of the defender, on her plea to the relevancy of the claim of the pursuer.

By missive letters in July and August 2004, Whitburn Trade Centre Ltd ("Whitburn") agreed to purchase from the pursuer property known as The Bathville Inn, 2 Station Road, West Lothian. The consideration included a payment by Whitburn of £200,000. By a Minute of Agreement, it was agreed that the purchaser would, on completion of the development, and at no further cost to the pursuer, provide the pursuer with a flat in the development.

The 2004 missives were then further amended by missive letters exchanged in November 2005. A Minute of Agreement annexed to the 2005 missives provided inter alia that Mr James Whannel would replace Whitburn in respect of the development and in respect of its undertakings to the pursuer. The pursuer was also provided with the option to acquire from Mr Whannel two extra flats within the development, at the cumulo price of £50,000.

The development was ultimately not completed, and Mr Whannel died on 16 June 2007. His death terminated his ability to complete the development and to grant the pursuer the free flat or the option flats. The pursuer contended that on that date his right to claim under clause 6 of the 2005 Minute of Agreement crystallised. He contended that, in terms of that clause, he was entitled to compensation for Mr Whannel's failure to grant him those flats up to a maximum amount of £200,000.
The defender was the executrix nominate of the late Mr Whannel; she submitted that the missives, upon which the pursuer’s case was founded, were subject to a two year contractual time bar which expired prior to the commencement of the present proceedings.

The court noted that the contended contractual time bar appeared in clause 10 of the 2004 Minute of Agreement, and was formulated in terms that the missives would remain in force until implemented, but only for a period of two years. The court noted however, that in 2005, the offer to amend the 2004 Missives was accepted. The most significant changes under these missives was the replacement of the 2004 Minute of Agreement, with the new 2005 Minute of Agreement. Although this new Minute of Agreement was ultimately not executed, the court noted that it contained terms which were clearly intended to have immediate effect, not least that Mr Whannel was named as the new purchaser of the subjects. The court was convinced that the parties were deliberately entering into a binding agreement in terms of the 2005 Minute of Agreement, and intended it to come into immediate effect. On the contrary, the terms of the 2004 Minute of Agreement were only to come into effect when its suspensive conditions relating to planning permission etc had purified, the parties having recognized that there was a risk that they would not purify at all.

The court thus concluded that the time bar in terms of clause 10 of the 2004 Minute of Agreement had no impact on the terms of the 2005 Minute of Agreement, and accordingly rejected the submissions made by the defender.

Dibble v Pfluger, [2010] EWCA Civ 1005, 3/9/2010

Thu, 23 Sep 2010 16:38:14 GMT

The Appellant was successful in appealing against the decision that he had no interest in a Polish property and that an English property should be sold and proceeds paid to both parties in equal shares. The Judge had failed to make adequate findings about payments made in relation to the Polish property and the matter was remitted for rehearing as to the impact of payments made in relation to the claim as to beneficial interest in the Polish property.

Somerfield Stores Ltd v Spring Ltd, Times, 15/09/10

Thu, 23 Sep 2010 16:37:09 GMT

The Appellant business tenant unsuccessfully appealed against the dismissal of its application for summary judgment to dismiss the opposition of the Landlord of its application for new tenancy. The date of the hearing at which the necessary intention had to be shown to exist was always the date of the substantive trial of the landlord’s ground of objection. At any summary judgment the question was, looking forward, whether the landlord could show a real prospect of being able to establish the necessary intention at the date of trial.

Malcolm Snowie v. Museum Hall LLP [2010] CSOH 107

Thu, 12 Aug 2010 14:52:15 GMT

Debate:- In 2007, the pursuer and three members of his family entered into missives for the purchase from the defenders of six flats. Euan and Gordon Snowie purchased two flats, and Malcolm and Amanda Snowie purchased one flat each. Each of the pursuers contracted individually with the defenders for the purchase of their respective properties. The Deed of Conditions for the flats was registered on 7 December 2009. The action here relates to the proper construction of clause 8 of the Deed of Conditions which states inter alia that:- “…the conditions contained in any Deed of Conditions relating to the Development which shall contain no unduly onerous or unusual conditions…”. Rules 2.4.2 and 2.4.9 of the deed of Conditions provide as follows:- (2.4.2) "No trade, business or profession may be carried out in the apartment (including the sale, making or manufacture of any beer, wine or liquors); and (2.4.9) "Each apartment must be used as a private house only, and may not be used, even in an ancillary capacity, for any trade, business or profession". The pursuers contended that Rules 2.4.2 and 2.4.9 of the Deed of Conditions were unduly onerous and unusual conditions, entitling them to resile from the missives. The defenders disputed that but accepted that if the Rules did amount to unduly onerous and unusual conditions then the pursuers would be entitled to resile from the missives and recover any deposits paid. In addition to these actions the defenders raised four actions against the individual members of the pursuers’ family for implement of the missives and payment of the balance of the purchase price in respect of the flats together with interest. Here at debate the court considered whether the conditions imposed by Rules 2.4.2 and 2.4.9 were unduly onerous or unusual within the meaning of clause 8 of the Deed of Conditions.

Batt Cables Plc v. Spencer Business Parks Ltd [2010] CSOH 81

Thu, 12 Aug 2010 09:53:44 GMT

The pursuer was a tenant of industrial premises owned by the defender. The pursuer sought declarator that they had validly exercised their entitlement to break the lease, under a break clause. In order to be effective, the break clause required the pursuer to serve written notice on the defender. The defender disputed that effective termination had occurred, as while notice was in written form and was served on them, it was not addressed to the correct party and strict compliance with the terms of the lease was called for.

The pursuer submitted that the break notice served complied with the mandatory requirements of the lease, and esto, that the break notice was validly served on the landlord in any event, being served and addressed to agents of the landlord, expressly or implicitly authorised to take receipt of such notices, following the defender’s representations to this effect in correspondence.

The Court considered the “reasonable recipient” test, acknowledging that when a contract confers on a party a right, the party seeking the exercise of that right must comply strictly with those agreed conditions or requirements, to enable certainty on whether the event has altered the parties’ relationship. Under consideration, the court deemed that strict compliance had not been met, in failing to identify the addressee. Nonetheless, the court found the break notice to be validly served on an agent of the defender, the addressee having actual authority to receive on their behalf the break notice given by the pursuer. The lease had therefore been validly and effectively terminated by the break notice; declarator granted.

Austin (FC) (Appellant) v. Mayor and Burgesses of the London Borough of Southwark (Respondent), [2010] UKSC 28

Thu, 24 Jun 2010 23:53:07 GMT

The Appellant’s brother, who is now deceased (“the Deceased”), held a secure tenancy under the Housing Act 1985 (“the 1985 Act”) of a property owned by the London Borough of Southwark (“the Authority”). The Appellant contends that he lived in his brother’s home for the 12 months preceding his death, caring for him during his terminal illness. The Appeal arises from the efforts of the Appellant to resist the Authority’s efforts to evict him from the property.

Crieff Highland Gathering Ltd v. Perth and Kinross Council [2010] CSOH 67

Wed, 26 May 2010 11:59:59 GMT

Procedure Roll:- In this action the pursuer sought declarator that a lease between the parties, relating to subjects in Crieff, was validly terminated by the pursuer on 22 January 2009 and for an order ordaining the defenders to remove. It was the pursuers case that the defender had not adequately maintained the subjects in accordance with its obligations under the lease and on 23 November 2007 they served a notice on the defenders enclosing an interim schedule of dilapidations and calling for the wants of repair to be remedied within 3 months failing which the lease would be terminated. The pursuer averred that the defenders failed to carry out the repairs and were thus in breach of the contractual provisions between the parties and a notice of termination of lease was served on 22 January 2009 and in the circumstances it is fair and reasonable for them to treat the lease as being terminated. It was the defenders position that a wall referred to by the pursuers was generally structurally sound and intact and during 2009 the defenders carried out various repairs and maintenance works at the subjects, including repairs to these walls. On the procedure roll the defenders sought dismissal of the action on their second plea in law on the basis that rescission is only available where:- (1) there has been a material breach of contract; (2) the tenant has been requested to perform his obligation; and (3) the tenant is unwilling or unable to perform in the future, none of which applied in the present case. It was submitted on behalf of the pursuer that the case should be sent to proof as the defenders had entered into a voluntary contract with the pursuers and were subsequently served with a notice alleging failure to fulfil obligations under that contract and they had failed to fulfil those obligations within a period in which they were given the opportunity to do so. Here the court considered the defenders plea and whether the pursuers had averred sufficient circumstances, in relation to any material breach of contract, notice to perform, and a failure to remedy within the period of the notice, to entitle them to a proof.

The Coulston Trust v. The Firm of A.C. Stoddart & Sons [2010] CSIH 20

Thu, 25 Mar 2010 18:32:57 GMT

Appeal from the Land Court:- The appellant is the landlord of the holding of Colstoun Mains, Haddington, and the respondent is the tenant. The Land Court had heard parties on the question of whether certain proposed adjustments should be allowed and, if so, whether the Court would be deprived of jurisdiction to entertain the tenant's application. The Land Court refused to allow amendment of the landlord's pleadings. Here the appellants appealed on three grounds:- (1) whether the Land Court had power to disallow the proposed adjustments; (2) whether the landlord's right to plead section 13(8)(b) to prevent the Land Court from proceeding with the rent review can be renounced or otherwise lost by the landlord; and (3) if the Land Court had power to disallow the adjustments and if the landlord's right under section 13(8)(b) is one that can be lost, whether the Land Court exercised its discretion correctly. Here the court considered the issues raised in the appeal.

Site Developments Ltd & Ors v Cuthbury Ltd & Ors

Thu, 04 Feb 2010 16:28:44 GMT

The Claimant land owners were successful in their claim that the Defendants did not own two strips of land abutting their land. The transfers of adjacent parcels of land that abutted land that was later made into a road should be correctly interpreted as granting an immediate right over the land over which a road was proposed to be built.

Delaney v Chen & Anr, (2010) 3 EG 103 (CS)

Thu, 04 Feb 2010 16:27:28 GMT

The Appellant was successful in appealing against the decision of a judge that his purchase of a property and lease back was at an undervalue. Whilst the price was substantially lower than the unencumbered freehold value, the Respondent failed to show section 423 of IA 1986 applied as the premium value of the tenancy made up the shortfall in purchase price.

Westvilla Properties Ltd v Dow Properties Ltd, ChD (15 January 2010)

Thu, 04 Feb 2010 16:24:33 GMT

The Claimant was successful in its claim for specific performance of a contract for the sale of property despite the omission of plans of the property to the draft lease. The court was able to say that the required correction was clear.

Mchale v Earl Cadogan, CA, (21 January 2010)

Thu, 04 Feb 2010 16:23:40 GMT

The Appellant headlessee successfully appealed against a decision by the Lands Tribunal in relation to the valuation of a flat in relation to collective enfranchisement. Where an underlease provided service charge would include the costs to the lessor of the loss of rack rent on a property which had to be provided rent free, the Appellant headlessee was entitled to compensation via the service charge.

Secretary of State for Environment, Food and Rural Affairs (Respondent) v Meier and another (FC) (Appellant) and others and another (FC) (Appellant) and another [2009] UKSC 11

Tue, 02 Feb 2010 23:02:09 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
A number of travellers established an unauthorised camp in Hethfelton, one of the woods managed by the Forestry Commission and owned by the Secretary of State for Environment, Food and Rural Affairs.

The Secretary of State sought an order for possession in respect of Hethfelton and other specified woods (also managed by the Commission and owned by the Secretary of State) which had not yet been occupied by the defendants to the claim. The Secretary of State also sought an injunction against the same defendants restraining them from re-entering Hethfelton and from entering the other woods.

The Recorder before whom the claim came decided to grant an order for possession against the defendants in respect of Hethfelton, but not in respect of the other woods. The Recorder also refused to grant the injunction sought. The Court of Appeal allowed the Secretary of State’s appeal against the Recorder’s refusal to grant the order for possession in relation to the other woods and against his refusal to grant the injunction. The defendants appealed.

JUDGMENT
The Supreme Court unanimously allowed the defendants’ appeal to the extent of setting aside the wider possession order made by the Court of Appeal.

REASONS FOR THE JUDGMENT
· Two main questions were before the Supreme Court:
(1) Whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant.
(2) Whether a court should grant an injunction restraining a defendant from trespassing on other land not currently occupied by him.
· On the first main question, the Supreme Court unanimously agreed that a court could not make such an order. Lord Rodger considered that such an order would be inconsistent with the fundamental nature of an action for recovering land because there was nothing to recover (Para 12). Lord Neuberger, who agreed with Lord Rodger on this question, thought that it did not make sense to talk about a defendant being required to deliver up possession of land where the defendant did not occupy such land in any conceivable way, and the claimant enjoyed uninterrupted possession of it (Paras 64, 74 and 78). Lords Rodger, Walker, Neuberger and Collins all thought that the Court of Appeal in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] 1 W.L.R. 1906 had illegitimately extended the circumstances in which an order for possession could be made (Paras 5, 20, 72 and 96). Lady Hale’s main objection to extending an order for possession in respect of distinct land which had not actually been intruded upon was one of natural justice. According to Lady Hale, the main problem with the current form of the usual order was that it was not specifically tailored against known individuals who had already intruded upon the claimant’s land, were threatening to do so again, and had been given a proper opportunity to contest the order (Paras 38 and 40).
· On the second main question, Lord Rodger, Lady Hale and Lord Neuberger agreed that the majority in the Court of Appeal were right to grant an injunction in this case. Lord Neuberger, with whom Lord Rodger agreed on this question, noted that neither the Recorder nor the Court of Appeal had concluded that an injunction should be refused on the ground that it would not be enforced by imprisonment (because the defendants were vulnerable or had young children) or because it would have no real value (since travellers usually have few assets). The Court of Appeal had not erred in granting the injunction (Para 84). Lord Neuberger was also of the view that the failure by the Commission to comply with the “Guidance on Managing Unauthorised Camping” issued by the Office of the Deputy Prime Minister should not preclude the granting of an injunction to restrain travellers from trespassing on other land (Paras 87 and 91). Lady Hale thought that the more natural remedy to deal with separate land which had not yet been intruded upon was an injunction against that intrusion, and one should not be unduly hesitant in granting that (Para 39).

Further comments
· Observations were made to the effect that there may be a need for reform of the remedies available in this area (Paras 18, 40 and 94).

Secretary of State for Environment, Food, and Rural Affairs v Meier & Ors [2009] UKSC 11 (01 December 2009)

Tue, 29 Dec 2009 23:46:45 GMT

The Appellant Travellers were in part successful in their appeal to the extent that the Court did not have the power to make a possession order in respect of a separate piece of land owned by the Respondent but not occupied by the Appellant Travellers. The decision in the case of Drury v Secretary of State for the Environment, Food and Rural Affairs (2004) EWCA Civ 200 (2004) 1 WLR 1906 allowing such an order was incorrect.

Davill v Pull & Anor [2009] EWCA Civ 1309 (10 December 2009)

Tue, 29 Dec 2009 23:45:12 GMT

The Appellant landowner was successful in appealing against the decision of a judge that the landowner’s asserted right to use a servient track to access his dominant land was limited to all reasonable and usual purposes relating to the use of the land as “garden ground”. On the proper construction of the relevant conveyances the track could lawfully be used for the purposes of building houses on the dominant land and their occupation when built.

David McGraddie v. Rodger John McGraddie & Lorna Esther Green [2009] CSOH 142

Thu, 05 Nov 2009 08:24:51 GMT

Proof:- The pursuer and defender are father and son, the second defender is the partner of the first defender. On 8 December 2005 the pursuer made a payment of £192,703.88 to the first defender's bank account. On 19 February 2007 the pursuer made a cheque payable to the first defender in the sum of £285,000. It was averred by the pursuer that the transfer of the two sums was for the purchase of two heritable properties, the titles of which were to be taken in the pursuer's name and at no time did he give the first defender any instruction to the effect that title was to be taken other than in the name of the pursuer. The two properties were transferred in to the name of the first defender, and the first and second defender respectively. The pursuer sought the rectification of this and the transfer of the two properties in to his name. For their part the defenders did not dispute that the two payments were made, however, they disputed the purpose of them. Following proof it was submitted on behalf of the pursuer that in respect of each transaction the first defender was instructed to act as the pursuer's agent in arranging the purchase of the relevant property on behalf of the pursuer. It was submitted that there was authority that an agent so acting holds the property on behalf of his principal notwithstanding the terms of the title and may be compelled to convey it. Here the court considered whether, in relation to the first property, the defenders were simply acting as agents for the pursuer and, as such, the agent is obliged to convey on demand and, in relation to the second property, whether the transaction amounted to a gift.

Clydesdale Home Limited v. Angela Quay and Mario Miguel de Aguiar [2009] CSOH 126

Wed, 16 Sep 2009 18:05:59 GMT

The subjects at 52 Carnwath Road, Braehead, Forth, Lanark were owned by a director of the pursuers and included a dwellinghouse, various buildings and a builders yard. The house was placed on the market and sold to the first defender and her then husband, however, the bulk of the yard was retained. The purchase was recorded in the Land Register for Scotland relative to title LAN157956, with the boundaries edged red in the title plan. The Keeper of the Registers of Scotland had not excluded indemnity in respect of the property and the first defender and her husband separated and divorced. The first defender continued to occupy the house along with the second defender. Since January 2008 both defenders have been registered in the proprietorship section as being the heritable proprietors in common of title LAN157956. A problem arose from an alleged error in the feu plan attached to the missives and the disposition. In this action the pursuers avers that the boundaries set out in the title plan relative to LAN157956 does not repeat the error. After the sale of the subjects the pursuers acquired title to the adjacent property at number 46. Following their acquisition the pursuers constructed houses on that land and on that part of the former number 52 which had been retained. The new houses are approached by an access road to the former dwellinghouse at number 46 which runs alongside the defenders' property. The new houses have been sold and the pursuers have erected a fence along the west side of the access road which the defenders claim encroaches onto their land. In this action the pursuers sought a declarator that there was no such encroachment. The issue in this proof was whether the pursuers had proven that the new fence was in the correct position having regard to the surveyors' evidence and the physical measurements which were carried out.

Transport for London (London Underground Limited) (Appellants) v Spirerose Limited (in Administration) (Respondents), [2009] UKHL 44

Thu, 27 Aug 2009 13:38:00 GMT

The issue for decision in this appeal relates to the basis on which compensation for compulsory purchase should be assessed in a case where the land in question has an unrealised potential for development but where the success of an application for the requisite planning permission is, although probable, not a certainty. More particularly, the issue is whether, in such a case, compensation should be assessed on the basis that planning permission for the development would be granted, or whether the amount that such an assessment would produce should be discounted to reflect the lack of certainty.

The Lands Tribunal and the Court of Appal held that where there would have been a possibility, but less than a probability, of planning permission, the land owner should have the benefit of hope value.

In rejecting the Court of Appeal’s conclusions, the House of Lords unanimously allowed the appeal. It held that the conclusion of the Court of Appeal undermined the principal conclusion that a finding of probability leads not to hope value but to valuation on an assumption that planning permission would certainly have been obtained. There was no basis in authority or in principle for the conclusion that it was open to the court in effect to establish an assumption that planning permission would be obtained, by analogy with the specific statutory rules which create the assumption.

William Wright v Shoreline Management Limited – Arbroath Sheriff Court, 29 June 2009

Thu, 30 Jul 2009 19:39:31 GMT

The Pursuer/Appellant sought Declarator that he was a tenant at will of a hut at Downs of Barry by Carnoustie and that he had the right to occupy the land on which the hut was erected “as established by custom and usage”. A Debate had taken place in relation to the Defenders/Respondents’ preliminary pleas. The Defenders had argued that the Sheriff Court did not have jurisdiction to declare the existence of a tenancy at will and also questioned the relevancy of the Pursuer’s pleadings. Following the Debate, the Sheriff had upheld both preliminary pleas and dismissed the action. The Pursuer had appealed. The Respondents had argued that the action should be dismissed on the basis that the Lands Tribunal had exclusive jurisdiction to determine the question of whether the Pursuer was a tenant at will.They had also argued that, in any event, the Pursuer’s pleadings were irrelevant to support the existence of a tenancy at will. There was lack of specification in relation to custom and usage. The Pursuer had also averred that the annual ground rent had varied over time, whereas a tenancy at will required a ground rent that was fixed. The Sheriff had held that the proper interpretation of Sections 20 and 21 (1) of the Land Registration (Sc) Act 1979 meant that an application to the Lands Tribunal was the only means by which a person could establish a right as a tenant at will. He had also taken the view that there was inadequate specification of “custom and usage” and that the Pursuer’s position in relation to rent was impossible to reconcile with the requirement that the ground rent should not vary. At appeal, the Pursuer argued that it was clear that the jurisdiction conferred in the 1979 Act was confined to a situation in which a tenant at will sought to acquire his landlord’s interest in the land that was subject to the tenancy. The Sheriff Principal agreed and allowed the appeal in respect of that element of the Sheriff's interlocutor. As regards the relevancy of the Pursuer’s pleadings, the Pursuer argued that the Sheriff had gone too far in dismissing the action and that he was at least entitled to a Proof Before Answer. He referred to a number of averments describing the nature of the holding and argued that these pointed to a tenancy at will. He argued that there was no rule of law that the ground rent of a tenancy at will required to be a fixed sum. The Defenders referred to the decision in Allan v McTaggart 2007 SC 482 as providing authorative guidance on the elements necessary to constitute a tenancy at will. It was simply not enough to make reference to “custom and usage” without further specification. The Sheriff Principal agreed that the decision in Allan v McTaggart provided authoritative guidance and he was satisfied that the pleadings in the present case did not provide the necessary specification of custom and usage. The Sheriff's decision on this point had been well founded and the appeal was refused.

Whitehouse v Lee [2009] EWCA Civ 375 (14 May 2009)

Wed, 13 May 2009 23:00:00 GMT

The appellant tenant successfully appealed a possession order made in relation to a protected tenancy as the trial judge had misdirected himself as to the correct approach on the issue of reasonableness which required the judge to consider the effect on both parties if an order was made and also if it was not made.

Port of London Authority v Ashmore [2009] EWHC 954 (Ch) (08 May 2009)

Thu, 07 May 2009 23:00:00 GMT

The court had to determine whether the owner of a barge which had been moored to mooring rings on the tidal part of the River Thames, had acquired title by way of adverse possession to the river bed for the footprint of the barge. In this case the title had not been registered and the vessel rested on the bed at low tide. It was held that adverse possession did not require physical contact with the river bed at all times It was not required that a squatter has to build on the land and in this case the Defendant had shown a sufficient intention to possess the relevant part of the river bed.

Qayyum v Hameed & Anor [2009] EWCA Civ 352 (27 April 2009)

Sun, 26 Apr 2009 23:00:00 GMT

The trial judge had been correct to conclude that a common intention constructive trust had been created with a husband a wife owning a property in equal shares. This was notwithstanding the fact that as a result of the husband’s innocent misrepresentation the couple entered into an agreement surrendering the wife’s sole beneficial interest.

Compugraphics International Limited v. Colin Nikolic [2009] CSOH 54

Thu, 09 Apr 2009 09:19:00 GMT

Procedure Roll:- In this action the pursuers sought:- (1) declarator that they were the heritable proprietors of pipes, ductwork and associated support structures situated in an industrial estate in Glenrothes; (2) that they had a heritable and irredeemable right to retain the works resting on and above the solum of the path and verge free from interference from the heritable proprietor of the solum; (3) alternatively they sought declarator that as the heritable proprietors of the subjects forming a unit within the industrial estate they had heritable and irredeemable servitude rights to retain the works; and (4) interdict against the defender from removing, altering, damaging or interfering with the works (interim interdict having been granted previously). At procedure roll senior counsel on behalf of the defenders sought dismissal of the action in terms of the defender's first plea-in-law. Counsel on behalf of the pursuers, invited the court to repel the defender's pleas-in-law and grant decree de plano on one or other of the alternative bases.

Glasgow City Council v. Gordon Craig & Aristide Moccia [2008] CSOH 171

Wed, 17 Dec 2008 17:41:00 GMT

The pursuers were the rating authority for the City of Glasgow. Their claim in this action was for the balance of non-domestic rates due in respect of 67 and 69 Kilmarnock Road for the years 2004/5, 2005/6 and 2006/7. The sum claimed was £64,036.22 plus interest. The defenders were formerly directors of Arigo Limited the lessee of premises at 67 Kilmarnock Road, Glasgow. The defenders were also directors of Degreefresh Limited and opened a wine bar, under the name "Bar Vino", at 69 Kilmarnock Road, Glasgow, of which premises it was the sub-lessee. In December 2004 Degreefresh took an assignment from Arigo Limited of the lease of 67 Kilmarnock Road. On 10 January 2005 Degreefresh advised the pursuers that Arigo Limited was in liquidation and acknowledged that, with effect from 1 November 2004, it was responsible for the rates for both premises. The rates were originally claimed against Degreefresh and summary warrants were obtained addressed to Degreefresh at 67 Kilmarnock Road. Degreefresh was placed into liquidation on 12 September 2007 and due to part of the rates demanded being unpaid, the pursuers in this action sought to hold the defenders personally liable for the unpaid balance in terms of ss.216 and 217 of the Insolvency Act 1986. Here the court considered the extent to which the defenders were personally liable for the debts incurred by Degreefresh Limited in the course of carrying on business under the name "Arigo" a prohibited name in terms of s.216.

Possfund Custodial Trustee Limited v. Kwik-Fit Properties Limited [2008] CSIH 65

Wed, 10 Dec 2008 07:36:00 GMT

Reclaiming Motion:- The pursuers are the present landlords, and the defenders are the tenants, of commercial premises in Edinburgh, in terms of a lease entered into in 1993. This action was concerned with the construction of a commercial lease. The question was whether a right of inspection conferred by the lease upon the landlords entitled them to carry out investigations in order to ascertain whether soil pollution had occurred. Clause 3.11 of the lease stated:- "...in order to view the state of repair and condition thereof and, in particular, to drill five shallow boreholes and a single deep rotary borehole within the Premises in order to inspect and examine the condition of the solum of the Premises." The court approached the question as one turning on the construction of clause 3.11.

McLaughlin v Duffill, CA, 26/11/2008

Wed, 26 Nov 2008 00:00:00 GMT

The Appeal by a home seller against an order for specific performance of a contract for the sale of a property granted in favour of the respondent purchaser was dismissed. The sale had proceeded by the home seller’s agent acting under oral authority. Until the equitable title in the property was transferred to the buyer from the seller, the contract for sale was nothing more than a contract to which normal rules of agency would apply.

Sava v SS Global Ltd & Ors, CA, 25/11/2008

Tue, 25 Nov 2008 00:00:00 GMT

There was no principle of law in adverse possession claims that only acts of possession by the paper owner carried out during a limited period after the claimed ouster that would or might serve to defeat the claim that there had been such an ouster. Such a proposition was contrary to principle.

Grosvenor Estates Ltd v Prospect Estates Ltd [2008] EWCA Civ 1281 (21 November 2008)

Fri, 21 Nov 2008 00:00:00 GMT

The Appellant landlord appealed a decision that the Respondent tenant had the right as a tenant under a long lease to acquire the freehold of its building, because the building was at the date of service of notice of the claim a house “reasonably so called” within the Leasehold Reform Act 1967. The judge had applied the proposition that circumstances would have to be such that nobody could reasonably call the building a house for a judge to hold that it was not a house. The appeal was allowed as the judge had applied the proposition without taking full account of all the relevant circumstances and had paid insufficient attention to the exceptional circumstance of prescribed and predominant office use which was the decisive feature of the case, not its design and appearance.

Midill (97PL) Ltd. v Park Lane Estates Ltd & Anor [2008] EWCA Civ 1227 (11 November 2008)

Tue, 11 Nov 2008 00:00:00 GMT

The Appellant company unsuccessfully appealed against a decision not to exercise the discretion under the Law of Property Act 1925 to order repayment of a deposit. The CA held that there needed to be something special or exceptional to justify overriding the ordinary contractual expectations of the parties.

Trygort (Number 2) Limited v. UK Home Finance Limited and Another [2008] CSIH 56

Thu, 06 Nov 2008 10:57:00 GMT

Appeal from the Sheriff Court:- The appellants let to the first respondents commercial subjects at 110 West George Street, Glasgow, for a period of three years from 28 May 2004. The second respondents were guarantors of the tenant's obligations. On 24 December 2005 the first respondents vacated the subjects. In this sheriff court action the appellants sought inter alia declarator that the first respondents were contractually bound to use and occupy the subjects until 27 May 2007 and to pay the rent until that date and by vacating the premises the first respondents were in breach of the lease. It was submitted on behalf of the first respondents that they were entitled to vacate the premises by virtue of a notice which they had given the appellants to exercise a break option in terms the lease. At debate the sheriff dismissed the action, holding that there were no relevant averments to indicate that the first respondents were not entitled to exercise the option and the sheriff was of the view that although the ordinary meaning of the language of the clause favoured the contentions of the appellants this was a case where the ordinary meaning could not be given to the words used. At appeal both parties submitted that the words used were capable, as a matter of ordinary language, of only one meaning, albeit the parties differed as to what that was. Here the court considered the construction of the relevant clause and the interpretation to be given to it.

Scottish & Newcastle plc (Original Respondents and Cross-appellants) v Raguz (Original Appellant and Cross-respondent), [2008] UKHL 65

Wed, 29 Oct 2008 16:18:00 GMT

Under common law, a tenant agrees to pay the rent in terms of a lease whether or not he has assigned the lease to someone else. This rule was changed by s.5(2) of the Landlord and Tenant (Covenants) Act 1995, which provides that if a tenant assigns the leased premises, he becomes released from his covenants. However, this change only applies to tenancies granted after the Act came into force in January 1996. The common law continues to apply to earlier tenancies, but subject to the restrictions contained in ss.17 – 20 of the 1995 Act.

s.17(2) states that the former tenant shall not be liable to pay the rent unless, within the period of 6 months beginning with the date when the charge becomes due, the landlord serves on the former tenant a notice informing him (1) that the charge is now due; and (2) that in respect of the charge, the landlord intends to recover from the former tenant the amount specified in the notice.

s.17(4) states that where the landlord has served a notice under s.17(2), the amount which the former tenant is liable to pay shall not exceed the amount specified in the notice unless -(a) his liability is subsequently determined to be for a greater amount, (b) the notice informed him of the possibility that the liability would be so determined.

Scottish and Newcastle (S&N) were the original tenants of premises under two leases dated 1967 and 1969. The leases contained provisions for rent review every 14 years. S&N assigned the leases to Mr Raguz who also assigned the leases. One of the assignees then defaulted on the rent. In 1999, the landlord served several s.17(2) notices on S&N who paid the arrears.

Rent reviews were commenced in 1995 and 1996. They were concluded in 2000 and 2001. The landlord then served further notices on S&N to recover the backdated increases. S&N paid the increased sums and sought to recover the sums from Mr Raguz. Mr Raguz argued that he was not liable to pay as S&N should not have paid the landlord. He argued that the notices should have been served within 6 months of the rent review dates in 1995 and 1996.

Therefore, the question in this case was whether, for the purposes of s.17(2), an increase under a rent review was to be treated retrospectively as having become due from the commencement of the rent review period, thereby triggering the six month period during which the landlord must serve a notice on the former tenant or lose the right to claim under the covenant.

Mr Raguz argued that the increased rent became due on the rent review date. S&N argued that the increased rent became due when it was agreed. The Court of Appeal held that the sums were due on the review date. This placed an administrative burden upon landlords who then had to serve notices within six months of each date that the rent fell due until a rent review had been agreed, even if the tenant was not in arrears. The Court of Appeal recognised the existence of this administrative burden but concluded that it was an "unintended anomaly of the legislation". S&N appealed.

The House of Lords unanimously allowed S&N’s appeal stating that the Court of Appeal’s decision was a "ridiculous conclusion”. It held that s.17 notices need only be served within 6 months of the outcome of the rent review.

Scottish & Newcastle Plc v Raguz [2008] UKHL 65 (29 October 2008)

Wed, 29 Oct 2008 00:00:00 GMT

An increase under a rent review for the purposes of the Landlord and Tenant (Covenants) Act 1995 was to be treated as having become due when the increase was agreed or determined, not when the rent review period commenced.

The Royal Bank of Scotland PLC v Victoria Street (No.3), Ltd, ChD, 28/10/2008

Tue, 28 Oct 2008 00:00:00 GMT

A landlord was entitled to refuse consent to assignment of a lease having considered a number of factors affecting the ability of the assignee to meet the covenants. The landlord’s refusal of consent was one a reasonable landlord could have arrived at, and as such no further justification for its decision was required.

Risegold Ltd v Escala Ltd [2008] EWCA Civ 1180 (28 October 2008)

Tue, 28 Oct 2008 00:00:00 GMT

The redevelopment of a property constituted “rebuilding or renewal” within the meaning of a right of entry that accordingly permitted the property owner to enter the adjoining property for the purpose of carrying out the works.

Style Menswear Limited for a Suspension of a Charge for Payment and for Interdict and for Suspension and Interdict Ad Interim [2008] CSOH 149

Wed, 22 Oct 2008 09:39:00 GMT

The petitioners are tenants of Unit 25, St Enoch Centre, Glasgow and the respondents are the landlords. The respondents sought to execute diligence against the petitioners in respect of two quarters unpaid rent and a charge was served on 23 September 2008. On 7 October 2008 the petitioners sought and obtained an order suspending the charge ad interim and now sought an order for interim interdict to prevent the respondents and all others acting on their instructions from doing further diligence or raising any other legal proceedings on the basis of "the pretended certificate" of sums allegedly due by them. It was submitted on behalf of the petitioners that there was a prima facie case that the respondents were in breach of the lease and that that breach had caused them to suffer loss. It was further submitted that the balance of convenience favoured the granting of interim interdict. It was submitted on behalf of the respondents that the petitioners had not made out a prima facie case and the order of 7 October suspending the charge should be recalled. Here the court considered whether the petitioners had shown they had a prima facie case and whether the balance of convenience favoured them.

Fowles v Heathrow Airport Ltd, CA, 16/10/2008

Thu, 16 Oct 2008 00:00:00 GMT

The Appellant tenant failed in an appeal of the exercise of a judge’s discretion under the Landlord and Tenant Act 1954 in dismissing the tenant’s application for a new tenancy, there was no flaw in the exercise of the judge’s discretion in circumstances where the tenant had continually flouted planning controls by operating various businesses on an area of land.

Hutchison & Ors v B & DF Ltd [2008] EWHC 2286 (Ch) (03 October 2008)

Fri, 03 Oct 2008 00:00:00 GMT

Landlord and Tenant: A landlord had made oral agreements with a tenant for the grant of three year leases of industrial units. These agreements did not have to satisfy the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 section 2, in that they did not have to be in writing. This was because they ripened into legal leases when possession was taken as the three year terms created legal leases pursuant to section 54(2) Law of Property Act 1925.

Cathay Loon Fung Ltd v. Purewal Enterprises Ltd [2008] CSOH 129

Tue, 09 Sep 2008 18:19:00 GMT

The pursuers are the tenants of a restaurant on Sauchiehall Street, Glasgow in a lease between themselves and the defenders, the heritable proprietors and landlords of the premises, dated 30 August 2005. The defenders served on the pursuers a pre-irritancy notice giving the pursuers notice that the lease might be terminated by them if rent allegedly due in terms of the lease was not paid within a period of 14 days. In this action the pursuers sought declarator that they were entitled to use and occupy the premises and for interdict prohibiting the defenders or anyone on their behalf from performing any act interfering with the pursuers right to use and occupy the premises. On 11 June 2008 interim interdict was granted by the Lord Ordinary in terms of the summons. On 1 July 2008 the defenders' agents served an irritancy notice on the Company purporting to terminate the lease of the premises. The notice was founded upon the failure to pay the sums referred to in the pre-irritancy notice and also upon the apparent insolvency of the Company as evidenced by the appointment of a provisional liquidator who took the view that the grounds of irritancy relied upon by the defenders in the notice could not be purged and returned the keys to the premises to the defenders. Here a minute was lodged on behalf of the pursuers craving the court to ordain an office holder of the defenders to appear personally at the bar of the court to explain the defenders' breach of interdict and to inflict upon the defenders such punishment as the court saw fit in the circumstances. Here the court considered whether the defenders' action in serving an irritancy notice was in breach of the interim interdict granted on 11 June 2008.

Oriental Express (Scotland) Ltd v. Purewal Enterprises Ltd [2008] CSOH 130

Tue, 09 Sep 2008 18:16:00 GMT

The pursuers are the tenants of a takeaway in Larkahhall in a lease between themselves and the defenders, the heritable proprietors and landlords of the premises, dated 4 February 2008. The defenders served on the pursuers a pre-irritancy notice giving the pursuers notice that the lease might be terminated by them if rent allegedly due in terms of the lease was not paid within a period of 14 days. In this action the pursuers sought declarator that they were entitled to use and occupy the premises and for interdict prohibiting the defenders or anyone on their behalf from performing any act interfering with the pursuers right to use and occupy the premises. On 11 June 2008 interim interdict was granted by the Lord Ordinary in terms of the summons. On 1 July 2008 the defenders' agents served an irritancy notice on the Company purporting to terminate the lease of the premises. The notice was founded upon the failure to pay the sums referred to in the pre-irritancy notice and also upon the apparent insolvency of the Company as evidenced by the appointment of a provisional liquidator who took the view that the grounds of irritancy relied upon by the defenders in the notice could not be purged and returned the keys to the premises to the defenders. Here a minute was lodged on behalf of the pursuers craving the court to ordain an office holder of the defenders to appear personally at the bar of the court to explain the defenders' breach of interdict and to inflict upon the defenders such punishment as the court saw fit in the circumstances. Here the court considered whether the defenders' action in serving an irritancy notice was in breach of the interim interdict granted on 11 June 2008.

Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) (27 August 2008)

Wed, 27 Aug 2008 00:00:00 GMT

The local authority widened an access road to its industrial estate by laying tarmac on the Claimant's land. The local authority was liable to pay damages for the acts of trespass on the land and the damages should be assessed on the basis of the hypothetical negotiation for the right to use and license others to use the land

M & M Savant Ltd v Brown & Ors [2008] EWLands LRX_26_2006 (08 August 2008)

Fri, 08 Aug 2008 00:00:00 GMT

Landlord and Tenant: The Tribunal considered whether the landlord had carried out consultation in accordance with section 20 of the Landlord and Tenant Act 1985. The landlord sent the tenants a letter telling them the estimates for building works were available for inspection at its offices. It did not include the estimates thermselves. The Tribunal held that the statutory obligation had not been complied with as the offices were 8-10 miles away from the properties and thus this did not constitute a display within section 20(4)(b).

Gallagher (Valuation Officer) (Respondent) v Church of Jesus Christ of Latter-day Saints (Appellants), [2008] UKHL 56

Wed, 30 Jul 2008 20:08:00 GMT

This appeal concerns the assessability for non-domestic rating of a group of buildings belonging to the Church of Jesus Christ of Latter-Day Saints in Lancashire. The main building in this dispute is the Temple.

The Valuation Officer’s case is simple in that he says that the Temple is not a place of “public religious worship”, and therefore not exempt, because it is not open to the public. The right of entry is reserved to certain members of the Mormon Church called the Patrons.

The appellants argue that a “place of public religious worship” does not have to be open to the public. What is required is only “congregational worship”.

The House had already considered this question in a previous case (Church of the Jesus Christ of Later-Day Saints v. Henning (Valuation Officer) [1964] AC 240) in which it was held that the words “place of public religious worship” could not apply to places used for religious worship from which the public was excluded.

The House held that even though subsequent legislation had come into force since the 1964 case, it seemed inconceivable that Parliament did not intend the same phrase to carry the same meaning which it had been given in the Henning case. Consequently, the Henning case was conclusive against the appellants on this point.

The appellants also argue that a different construction is required by s.3 of the Human Rights Act 1988. The exclusion of all but the Patrons is a manifestation by the Mormons of their religion. Therefore, to deny them exemption on that ground would be to discriminate against them on grounds of religion, contrary to arts.9 and 14 of the Convention.

The House held that in order to discriminate on grounds of religion, the alleged discrimination must fall “within the ambit” of a right protected by art.9 – in this case the right to manifest one’s religion. In this case, the liability of the Temple to a non-domestic rate would not prevent the Mormons from manifesting their religion. Having said that, if the legislation imposed rates only upon the Mormons, the House would have regarded that as being within the ambit of art.9 even if the Mormons could easily afford to pay them. However, the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That is an entirely different matter.

Further, even if the case could be regarded as one of indirect discrimination, it was justified on the ground that Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation.

The Church’s alternative argument is that the Temple is a church hall or similar used in connection with another building which admitted the public and was accepted as a place of public worship. This argument was rejected on the grounds that the Temple was far too important in the life of the Mormon Church to be described as being similar to a church hall being used in connection with another building.

The House of Lords unanimously dismissed the appeal.

Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents), [2008] UKHL 57

Wed, 30 Jul 2008 11:39:00 GMT

The question in this case is whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to an end. He has no enforceable right to remain there under English property law. But he claims that his removal would violate his rights under art.8 of the ECHR.

The respondent in this case asserted that it required vacant possession of the site to carry out essential improvement works. Once the works were completed the site was to be managed as temporary accommodation for travellers. Genuine travellers, it was said, were currently deterred from going on the site because of the presence there of the appellant and his family. As a result the site was underutilised. This had led to unauthorised encampments elsewhere in the area. It should be noted that the claim was not based on any allegation of misconduct on the part of the appellant or any members of his family, nor was it alleged that the licence agreement had been breached. It was based on the respondent’s judgment as to the appropriate use of the site for travellers. The appellant maintained in his defence that the respondent was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that in the circumstances of his case this test was not satisfied. He relied, inter alia, on his right to respect for his home under art.8 and on the respondent’s duty not to act in a way which is incompatible with a Convention right under s.6(1) of the Human Rights Act 1998.

The Birmingham District Registry of the High Court found in favour of the respondent. In doing so, the judge did not form any view about the merits of the justification that the respondent had given for seeking possession. He held that the appellant could not rely on the provisions of the Human Rights Act 1998 or on art.8 of the Convention. However, he did not think that there were factual disputes between the parties such as to make judicial review inappropriate. The judge gave permission to appeal and certified the case as suitable for an appeal direct to the House of Lords.

The case did, in fact, go to the Court of Appeal where the appellant’s appeal was dismissed.

The House of Lords unanimously allowed the appeal. The House stated that the case should be remitted to the judge in the High Court so that he could review the reasons that the respondent had given for serving a notice to quit to obtain vacant possession of the plots that the appellant and his family occupied. It would be for the judge to resolve any dispute that he needed to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable. If he was satisfied that this requirement had been met he would have to make a possession order. There would be no answer to the respondent’s unqualified right to recover possession. If he was not satisfied, he would have to decline to make the order unless or until a justification that met that test had been made out.

Yeoman's Row Management Ltd & Anor v Cobbe [2008] UKHL 55 (30 July 2008)

Wed, 30 Jul 2008 00:00:00 GMT

A property developer reached an oral agreement in principle with an owner to buy its property and then spent considerable sums in obtaining planning permission. The owner then refused to proceed on the agreed terms and enter into a binding contract. The House of Lords held that the developer was not entitled to a remedy based on proprietary estoppel or a constructive trust. The developer was entitled to a quantum meruit payment for his services in pursuing and obtaining planning permission.

Goldeagle Properties Ltd v Thornbury Court Ltd (Rev 1) [2008] EWCA Civ 864 (25 July 2008)

Fri, 25 Jul 2008 00:00:00 GMT

The Leasehold Reform, Housing and Urban Development Act 1993, section 24(1) did not prevent a leasehold valuation tribunal from dealing in stages with unagreed matters in relation to a collective enfranchisement of a block of flats. The LVT had jurisdiction over all matters in dispute and was not confined to specific matters raised in the pleadings.

Luigi Romano v. Standard Commercial Property Securities Ltd & Atlas Investments Ltd [2008] CSOH 105

Thu, 24 Jul 2008 10:21:00 GMT

Debate:- This action concerned heritable rights attaching to two adjacent tenement buildings on the west side of Buchanan Street in Glasgow. Here the pursuer sought a declarator that he had:- "A heritable and irredeemable right to attach to the subjects known as the ground or upper ground floor of the tenement 209 Buchanan Street, Glasgow...a shop front, including fascia." At debate the first and second defenders submitted:- (1) that their first plea-in-law of no title and interest to sue be sustained; (2) that the pursuer's case based upon the existence of a servitude was irrelevant, there being no servitude of "signage" in the Law of Scotland; and (3) that the pursuer's case based on prescription was irrelevant as the pursuer required to aver that the use of the purported servitude was not only continuous and uninterrupted but that it was made in assertion of its existence as a right. On behalf of the pursuers it was submitted that a proof before answer be allowed in that the pursuers had made out a relevant case of possession for the requisite twenty years and the question of whether the facts demonstrated a possession as of right or mere tolerance was a matter for proof. Here the court considered whether the pursuer had title to sue and whether the pursuer could have a prescriptive servitude right to use that part of the external wall as a shop front.

HOLLAND HOUSE PROPERTY INVESTMENTS LIMITED v. NORNA FORSYTH CRABBE+J. EUAN EDMENT [2008] CSIH 40 XA35/07

Mon, 07 Jul 2008 10:01:00 GMT

First Division, Inner House, Court of Session. Appeal of decision of the sheriff principal who upheld a previous interlocutor of the sheriff at Glasgow by which interlocutor the sheriff had granted decree against the defenders for payment to the pursuers of the sum of £49,725,with interest. The sum represents backdated rent said to be due by the appellants under a least of premises occupied by them as tenantsof a property of which the respondents are the landlords. Having failed to agree the level of rent, both parties had instructed an independent surveyor, in terms of their own Lease agreements, to set an appropriate rent. Disputed whether the independent surveyor had in fact become an arbiter adn ,if so, whether he breached the rules of natural justice. Whether his decision was binding on the parties. Whether the sheriff principal should have granted a proof before answer on these issues. If proof before answer allowed, whether any material, other than the lease, would fall to be considered.

Possfund Custodian Trustee Limited v. Kwik Fit Properties Limited [2008] CSOH NUMBER79

Thu, 29 May 2008 15:20:00 GMT

Landlord/Tenant:- In this action the pursuers were the landlords and the defenders were the tenants of premises in Edinburgh. In the past the premises were a garage and had underground storage tanks for fuel. On 30 October 2007 the pursuers advised the defenders that they wished to make investigations into the solum of the premises in order to ascertain whether there had been any contamination of it from the storage tanks. The defenders contended that the pursuers had no entitlement to carry out the intrusive examination and refused permission for the proposed works. In this action the pursuers sought declarator that the defenders were obliged to permit the pursuers to enter the subjects "to inspect and examine the whole premises (including the solum of the premises and the underground tanks situated therein) in order to view the state of repair and condition thereof and, in particular, to drill five shallow boreholes and a single deep rotary borehole within the premises in order to inspect and examine the the condition of the solum of the premises." Here the court considered whether such works were permissable in terms of the lease, in particular, with regard to the clause of the lease which required the tenant "To permit the landlord and its agents at all reasonable times with or without workmen on giving 48 hours' written notice (except in emergency) to the tenant to enter upon the premises generally to inspect and examine the same, to view the state of repair and condition thereof and to take a schedule of the landlords' fixtures and of any wants of compliance by the tenant with its obligations hereunder".

Foxtons Ltd v Pelkey Bicknell & Anor [2008] EWCA Civ 419 (23 April 2008)

Wed, 23 Apr 2008 00:00:00 GMT

The Appellant had a sole agency agreement with the Respondent to sell her house. The Respondent showed the house to a person who was looking for a house for his former wife. The former wife visited the house after the sole agency had terminated and she did not like the house. She only offered to buy the house some 3 months later. The Court of Appeal held that in order to be entitled to commission the agent had to introduce the purchaser to the purchase and not merely to the property.

Duffield & Anor v Gandy [2008] EWCA Civ 379 (17 April 2008)

Thu, 17 Apr 2008 00:00:00 GMT

The Appellant sought to appeal the decision of the Lands Tribunal refusing to modify or discharge a restrictive covenant. The Appellant obtained planning permission to build a bungalow in the corner of his property. The property was subject to a restrictive covenant prohibiting the erection of a "residence". The Tribunal had been entitled to conclude the practical benefits of the restriction were of substantial value or advantage to the Respondent.

Ezekiel & Anor v Kohali & Anor [2008] EWHC 734 (Ch) (11 April 2008)

Fri, 11 Apr 2008 00:00:00 GMT

The Defendants owned land and sold part of it to the Claimants. The Claimants sought specific performance of the agreement with an abatement of the purchase price as the Defendants were unable to show good title to all the land. The Claimants failed in the claim for an abatement as it was held the Claimants had knowledge of the Defendants' defect in title. As the Claimants knew this they could not be said to have relied upon any representations as to title made by the Defendants.

Wolanski & Company Trustees Limited v. First Quench Retailing Limited [2008] CSOH 50

Thu, 27 Mar 2008 11:40:00 GMT

Debate:- The pursuer was the heritable proprietor of premises at 81-85 Renfield Street, Glasgow, and succeeded to the landlord's part of a lease of those premises. The defender was vested in the tenant's part of that lease. Subsequently the defender sublet the premises to a company known as Big Mammy K Ltd. Thereafter Big Mammy K Ltd assigned its interest in the sublease to a company known as Soulband Ltd. Under the provisions of the lease the pursuers' consent was required to any assignation of the tenant's interest under the sublease. Thereafter the premises were occupied without right or title by a company known as Degreefresh Ltd who were evicted on 15 June 2005. However, notwithstanding the removal of Degreefresh Ltd, the persons who had been in occupation continued to occupy and trade from the premises as an Italian restaurant. The pursuer began summary cause proceedings for removal of the occupiers on 27 June 2005 and the occupiers removed from the premises voluntarily and the proceedings by the pursuer were dismissed. The pursuer thereafter raised an action in which they sought:- (1) declarator that the defender was tenant of the premises that were the subject of the lease; (2) declarator that the defender was bound to use and occupy the premises until 31 July 2010 or until the lease was lawfully terminated or assigned; and (3) declarator as to the amount of rent from 1 August 2001 onwards, decree ordaining the defender to execute a minute of agreement recording that rent, and payment of arrears of rent. The defenders lodged defences to the action and here at debate the pursuers submitted that the defender's averments were irrelevant.

Oun v Ahmad [2008] EWHC 545 (Ch) (19 March 2008)

Wed, 19 Mar 2008 00:00:00 GMT

The judge upheld the decision of an adjudicator that where parties had executed a written document that only contained some of the express terms of a contract there was no common mistake and no order for rectification was possible. Section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 required a written document to incorporate all the terms the parties had expressly agreed.

Shah v Colvia Management Co ltd (CA) 18/3/2008

Tue, 18 Mar 2008 00:00:00 GMT

The management company of an industrial estate sought to introduce a car parking scheme. The Respondent objected to the scheme particularly due to the imposition of an overnight fee. The judge found the scheme to be unreasonable on the basis the Appellant had not researched the proper local market rate for overnight parking. The Court of Appeal held that if the fees were reasonable it did not matter how they had been arrived at. The judge had reversed the burden of proof and it was for the objector to prove the scheme was unreasonable and not for the management company to have to show it was reasonable.

City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2008] EWCA Civ 156 (06 March 2008)

Thu, 06 Mar 2008 00:00:00 GMT

Where a transfer document contained covenants that defined a specified party as transferor and did not include successors in title, the Court of Appeal had to determine whether the word "transferor" meant that specified party alone or also included successors in title. In this case the court determined that the original parties to the transfer never contemplated a situation where there would be successors in title and therefore the word "transferor" meant the named party only.

Roberts v Crown Estate Commissioners [2008] EWCA Civ 98 (20 February 2008)

Wed, 20 Feb 2008 00:00:00 GMT

The dispute concerned the foreshore and bed of theSevern estuary. The Crown was entitled to rely upon the Limitation Act 1980 and it was irrelevant that the adverse possession originated in an unlawful entry on to the land.

National Westminster Bank Plc v Ashe [2008] EWCA Civ 55 (08 February 2008)

Fri, 08 Feb 2008 00:00:00 GMT

The mortgagee had failed to take any steps to enforce its right to possession of a property for a period that exceeded 12 years since the right of possession first accrued. The Court of Appeal held that the mortgagor was in adverse possession of the property for in excess of 12 years and the lender's legal charge was extinguised by virtue of sections 15 and 17 of the Limitation Act 1980.

Chiltern Railway Company Ltd & Anor v Patel [2008] EWCA Civ 178 (08 February 2008)

Fri, 08 Feb 2008 00:00:00 GMT

The Court of Appeal held that a notice excluding the Landlord and Tenant Act Pat II which was served more than 14 days before the execution of the leases was valid even though an incorrect statutory declaration under the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 had been served. In the circumstances there had been a valid exclusion agreement and the landlord was entitled to possession.

Majorstake Ltd v Curtis [2008] UKHL 10 (6 February 2008)

Wed, 06 Feb 2008 00:00:00 GMT

The House of Lords considered the meaning of the phrase "any premises in which the flat is contained" in the Leasehold Reform, Housing and Urban Development Act 1993, section 47(2)(b). This phrase had to be an objectively recognisable physical space and something which would be objectively recognised as "premises".

Boss Holdings Ltd v Grosvenor West End Properties & Ors [2008] UKHL 5 (30 January 2008)

Wed, 30 Jan 2008 00:00:00 GMT

The House of Lords had to consider the phrase "designed or adapted for living in" in section 2(1) of the Leasehold Reform Act 196. The property was in a dlipaidated state and had not been occupied for many years. The House of Lords held that consideration had to be given as to the original purpose of the property and in this case it was originally "designed or adapted for living in" and therefore fell within the definition of a "house".

Reid Furniture v Lothian Assessor [2008] CSIH 4

Thu, 17 Jan 2008 13:24:00 GMT

Appeal – Property valuation – Assessors valued retail property at net annual value (NAV) of £471,500. Following a Valuation Appeal Committee Hearing the assessors reduced the valuation to £426,500 NAV. The appellant appealed against that decision on the grounds that it was too high. The appellant was a tenant in the property. Argued that certain factors not accounted for in valuation including obscurity of property and comparisons with other floor space in that area. Considered whether method used by assessor and Committee in taking agreed standard rate of £350 psm for premises at Kinnaird Park and then applying end allowance for relative disadvantages of subjects of valuation was proper approach. Appeal refused.

Homepace Ltd v Sita South East Ltd [2008] EWCA Civ 1 (15 January 2008)

Tue, 15 Jan 2008 00:00:00 GMT

An appeal by a tenant against a decision that a mineral exhaustion certificate issued by an expert surveyor under a lease was not valid was dismissed. The certificate had been issued on a mistaken basis as the surveyor had misconstrued what was intended by “the minerals”.

Credential Bath Street Limited v. Venture Investment Placement LTD [2007] CSOH 208

Thu, 10 Jan 2008 17:36:00 GMT

Proof - These proceedings were concerned with a guarantee of the tenant's obligations under a commercial lease. The pursuers were the landlord of the let premises, and the defenders were the guarantor. The pursuers maintained that the defenders were liable under the guarantee to pay the cost of repairs which should have been carried out by the tenant. The defenders denied liability on the basis that the guarantee had expired before any demand was made upon them in accordance with the guarantee. The pursuers in addition sought damages in respect of an alleged breach of an implied term of the guarantee. The question whether the defenders was in breach of any obligation owed to the pursuers depended fundamentally on issues concerning the construction of the guarantee and certain other documents. It was agreed that those issues could be resolved on the basis of the relevant documents and the parties' submissions.

Strathclyde Associated Property Holdings Limited (in liq) and Others v. Kah Limited+Ronald Hannah [2007] CSOH 210

Thu, 10 Jan 2008 17:32:00 GMT

This was an action by the liquidator of Strathclyde Associated Property Holdings Limited to have five leases of vacant residential property in Glasgow in favour of the first defenders declared null and void and for interdict against the second defender from changing or attempting to change the locks on those properties. Here, the pursuers moved for decree by default and for expenses on the basis that the defenders had failed to state relevant defences and No representation has been arranged for a previous hearing and no appearance was made at this time.

Ben Cleugh Estates Limited v. Scottish Enterprise [2008] CSIH 1 CA38/05

Thu, 10 Jan 2008 14:28:00 GMT

This case concerned a commercial action involving a dispute, between the pursuers, as landlords, and the defenders, as tenants, of commercial premises as to whether the defenders had validly terminated the lease of the Premises by exercising a break option, or alternatively whether the pursuers were personally barred from denying that the break option was validly exercised. A proof before answer was allowed and the Lord Ordinary made avizandum and then granted decree of declarator as concluded for. The defenders reclaimed against the interlocutor and this was part heard and then continued. Due to problems with arranging a suitable date for all those involved, arrangements were made for written versions of the junior speeches to be submitted, and it was agreed that the hearing could proceed with the senior speeches only being presented orally to a differently constituted bench. Those further submissions had now been heard. The Reclaiming Motion was now being considered by the Court.

Jackson v J H Watson Property Investment Ltd [2008] EWHC 14 (Ch) (7 January 2008)

Mon, 07 Jan 2008 00:00:00 GMT

The Claimant flat owner claimed that the Defendant, as assignee of the reversion of the property, was liable in nuisance for ingress of water into the flat. The Court held that the principle of caveat lessee applied as the defect was pre-existing and there was no liability on the part of the Defendant.

James v Thomas [2007] EWCA Civ 1212 (23 November 2007)

Sun, 23 Dec 2007 00:00:00 GMT

There was insufficient evidence that assurances which had been made by one person to another whilst they were living together for a period of 15 years were intended or understood to to create a promise of an interest in the property. Thus no constructive trust or proprietary estoppel arose.

Eyestorm Ltd v Hoptonacre Homes Ltd [2007] EWCA Civ 1366 (19 December 2007)

Wed, 19 Dec 2007 00:00:00 GMT

The Appeal against the decision not to award damages for breach of contract and return of a deposit paid to the Respondent developers was unsuccessful as there was no identifiable legal basis for asserting the Respondent to be in breach of contract and even if it were, it had not caused any loss.

Banfield & Anor v Leeds Building Society [2007] EWCA Civ 1369 (19 December 2007)

Wed, 19 Dec 2007 00:00:00 GMT

The Appellant mortgagors failed in their appeal against an order for possession made in favour of the Respondent mortgagee as the judge had been entitled to order possession and currently applied the principle that a person who had the benefit of a mortgage guarantee was not obliged to account to the mortgagor.

Green & Anorv London Borough of Croydon [2007] EWCA Civ 1367 (19 December 2007)

Wed, 19 Dec 2007 00:00:00 GMT

The Appellants failed in their appeal against a decision appealing the Respondent Council which had found them intentionally homeless. It was not incumbent on the Council to make enquiries going behind the decision of the court which made the possession order.

Ravengate Estates Ltd v Horizon Housing Group Ltd & Ors [2007] EWCA Civ 1368 (19 December 2007)

Wed, 19 Dec 2007 00:00:00 GMT

The Appellant failed in its appeal against a decision awarding damages for breach of a tenant’s repairing obligation. The Judge was correct in finding that, where the premises were ripe for redevelopment, that the amount of the diminution in the value of the reversion due to lack of repair was less than the cost of repairs.

Nelson v Greening & Sykes (Builders) Ltd [2007] EWCA Civ 1358 (18 December 2007)

Tue, 18 Dec 2007 00:00:00 GMT

The Appellants unsuccessfully appealed against a decision the making of a charging order as in the circumstances a person had the interest as a trustee required for a charging order. The Second Appellant unsuccessfully appealed against a non-party costs order as the court was found to have the power to order a non-party to pay costs that had already been assessed.

Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318 (12 December 2007)

Wed, 12 Dec 2007 00:00:00 GMT

Since section 4 of the Caravan Sites Act 1968 had been amended it would only be in truly exceptional cases that a public law defence to a claim for possession of a caravan pitch on a caravan site would succeed.

Powell & Anor v Benney [2007] EWCA Civ 1283 (05 December 2007)

Wed, 05 Dec 2007 00:00:00 GMT

The Appellants had looked after the Respondent's cousin and improved his properties for their own use. The Respondent's cousin had promised the properties to the Appellants upon his death however when he died the will was invalid. The Court held that there was not a strong enough causal link between the promise and the work carried out. There was therefore no reliance on the promise in order to create a proprietary estoppel.

Winter & Anor v Traditional & Contemporary Contracts Ltd [2007] EWCA Civ 1088 (07 November 2007)

Wed, 07 Nov 2007 00:00:00 GMT

The Lands Tribunal did not make an error of law when it decided to assess the compensation awarded for the modification of a restrictive covenant under section 84 of the Law of Property Act 1925 only on the basis of the impact of the development on the objectors. The Lands Tribunal did not have to consider the loss of opportunity to extract a share of the development value.

Cadogan & Anor v Sportelli & Anor [2007] EWCA Civ 1042 (25 October 2007)

Thu, 25 Oct 2007 00:00:00 GMT

The Court of Appeal held that hope value was not a permissible element when valuing under Schedule 6 or 13 of the Leasehold Reform, Housing and Urban Redevelopment Act 1993. It should therefore not be included when valuing the price to be paid for collective enfranchisement or lease extensions. Further, the Court of Appeal upheld the Lands Tribunal's judgment that deferment rates used for calculating the value of a reversionary interest should be set at 4.75% for houses and 5% for flats.

Ultimate Leisure Ltd & Anr v Tindle & Anr (CA) 25/10/2007

Thu, 25 Oct 2007 00:00:00 GMT

Section 38(1) of the Landlord and Tenant Act 1954 rendered void an agreement between the lessee of premises and the potential purchaser that the lessee would surrender its lease prior to the premises being purchased.

Hunte v E Bottomley & Sons Ltd [2007] EWCA Civ 1168 (16 October 2007)

Tue, 16 Oct 2007 00:00:00 GMT

The Court of Appeal stressed that in any case where the court was going to have to deal with plans, maps diagrams or photographs that they should be clearly marked and intelligible to the judges pre-reading the case.

Lawntown Ltd v Camenzuli & Anor [2007] EWCA Civ 949 (10 October 2007)

Wed, 10 Oct 2007 00:00:00 GMT

The Appellants failed in their appeal against a decision varying restrictive covenants so as to permit the conversion of a house into two flats. It was for the Court to make its own assessment of the relevant factors and the weight accorded to them and this exercise in judgement was separate from the planning process.

Chambers v Chambers [2007] EWCA Civ 1165 (04 October 2007)

Thu, 04 Oct 2007 00:00:00 GMT

An order for sale of a property had been made 20 years ago. It was held that the judge had made the only order that could properly have been made in ordering the Appellant to vacate the property and finding that the claim was not statute barred.

Funnell & Anor v Adams and Remer (A Partnership) [2007] EWHC 2166 (QB) (28 September 2007)

Fri, 28 Sep 2007 00:00:00 GMT

The Defendant partnership admitted liability for failure to advise the Claimants on the effect that a change made to a lease would have on the rent review clause but the Court held that the act of extricating oneself from a predicament by taking reasonable steps did not break the chain of causation.

Mansfield District Council v Langridge, QBD (Calvert-Smith J), 21/9/2007

Fri, 21 Sep 2007 00:00:00 GMT

The Appellant tenant’s appeal against a decision requiring him to give up possession of a flat to the Respondent was dismissed. A primary consideration in deciding whether a protected tenancy had been created is the purpose for which the premises were let. As the sole purpose was to preserve the parties’ position pending conclusion of possession proceedings the intention of the parties was to limit the occupation to that duration and no secure tenancy had been created.

Marcus Dean Trading As Abbey Mill Business Centre v. Tony Russell Freeman

Thu, 23 Aug 2007 00:00:00 GMT

Proof Before Answer - Payments due arising out of

Holman v Howes [2007] EWCA Civ 877 (27 July 2007)

Fri, 27 Jul 2007 00:00:00 GMT

A divorced couple purchased a property with a view to reconciliation and joint occupation. They both contributed to the purchase price and it was put into the former husband's sole name. The husband then left the property and the former wife continued to live there. The parties sought orders as to their beneficial shares and also the former husband sought an order for sale. It was held that there should be no order for sale without the former wife's consent. It was held that assurances had been made that she could occupy the property for as long as she wanted to.

Sinclair Gardens Investments (Kensington) Ltd v Poets Chase Freehold Company Ltd [2007] EWHC 1776 (Ch) (26 July 2007)

Thu, 26 Jul 2007 00:00:00 GMT

Lessees of a block of flats had served a notice exercising their right to collective enfranchisement. The notice served under section 13 of the Leasehold Rform, Housing and Urban Development Act 1993 was in fact invalid. The landlord contended that the lessees were prohibited from serving a further notice. The court held that this was not the case as the original notice was not valid and it could not be said a notice had been withdrawn. There was no statutory bar to the service of a valid notice.

Robert L Downie (ap) v The Trustees of the Earl of Stairs 1970 Trust [2007] CSIH 62

Thu, 26 Jul 2007 00:00:00 GMT

Appeal –

Jessie Mackenzie v Robert Grant and Mhairi Grant A589/04

Wed, 25 Jul 2007 00:00:00 GMT

Appeal –

Hamid Khosrowpour v. Murray Beith & Murray and Others [2007] CSOH 132

Fri, 20 Jul 2007 00:00:00 GMT

Procedure Roll

RHJ Ltd. v FT Patten (Holdings) Ltd & Anor [2007] EWHC 1655 (Ch) (13 July 2007)

Fri, 13 Jul 2007 00:00:00 GMT

The case concerned an office block and whether because the lease reserved the right to the landlord to build on adjoining land this prevented the tenant from acquiring an absolute and indefeasible right to light. As the landlord was to have a "full and free" right to build on the adjoining land this did not lead the tenant to have an absolute and indefeasible right to light.

Her Majesty's Advocate v. Joseph Wright for the making of a confiscation order [2007] HCJ05

Mon, 28 May 2007 23:00:00 GMT

Petition of H.M.A. for the making of a Confiscation Order in terms of sections 92 and 104 of the Proceeds of Crime Act 2002

Hunt v Soady [2007] EWCA Civ 366 (26 April 2007)

Sat, 26 May 2007 00:00:00 GMT

Even where there had been a provisional agreement between parties to transfer a beneficial interest, it was right to order the sale of a property where that agreement had not been acted on by the benefiting party either in good time or to his detriment.

Howard De Walden Estates Ltd v Les Aggio & Ors [2007] EWCA Civ 499 (24 May 2007)

Thu, 24 May 2007 00:00:00 GMT

The Leasehold Reform, Housing and Urban Development Act 1993 did not confer on a lead lessee the right of individual lease extension.

Little Cumbrae Estate Limited v Isand of Little Cumbrae Limited [2007] CSIH 35

Thu, 24 May 2007 00:00:00 GMT

Appeal from Sheriff Principal

Trans-World Investments Ltd v Dadarwalla [2007] EWCA Civ 480 (22 May 2007)

Tue, 22 May 2007 00:00:00 GMT

The Court of Appeal allowed an appeal where the trial judge had not taken the passing rent of the property when determining the new market rent under section 34 of the Landlord and Tenant Act 1954. The court held that the passing rent was relevant valuation evidence and it was for the party challenging the relevance of the passing rent to produce evidence to show why the passing rent is not a relevant factor in determining the market rent.

Lay & Ors v Drexler & Ors (t/a Littlestone Martin Glenton) [2007] EWCA Civ 464 (18 May 2007)

Fri, 18 May 2007 00:00:00 GMT

When a tenant served on a landlord notice under section 29(5) of the Landlord and Tenant Act 1954 informing the landlord that they no longer wanted a new tenancy this was equivalent to a notice of discontinuance. Unless the tenant could show special circumstances it would have to pay the landlord’s costs.

Wall v Collins & Anor [2007] EWCA Civ 444 (17 May 2007)

Thu, 17 May 2007 00:00:00 GMT

When a leasehold and freehold estate were merged it did not have the effect of extinguishing a right of way that had been attached to the leasehold interest.

Riverside Housing Association Ltd v White & Anr, HL, 7/5/2007

Mon, 07 May 2007 00:00:00 GMT

Where a rent review clause in an assured tenancy agreement provides that rent would be increased each year from the first Monday of June, the landlord is entitled, if the required notice is given, to increase rent on any date from and including the first Monday in June.

White v Knowsley Housing Trust & Anor [2007] EWCA Civ 404 (02 May 2007)

Wed, 02 May 2007 00:00:00 GMT

An assured tenancy expires on the last date for giving up possession, not only when possession was in fact delivered up in furtherance of the order.

KPMG LLP v Network Rail Infrastructure Ltd [2007] EWCA Civ 363 (27 April 2007)

Fri, 27 Apr 2007 00:00:00 GMT

A court is entitled as a matter of construction to refer to a draft lease and infer words omitted in the actual lease where it is clear words have been omitted and what is the gist of those words.

Vesely v Levy & Ors [2007] EWCA Civ 367 (27 April 2007)

Fri, 27 Apr 2007 00:00:00 GMT

It was plain that the owner of a property had not expressly or by implication granted a tenancy to the occupier prior to the coming into force of the Housing Act 1996, s.96.

Stack v. Dowden (Respondent) [2007] UKHL 17 (25 April 2007)

Wed, 25 Apr 2007 00:00:00 GMT

The division of a property to be divided on the breakdown of the relationship of a cohabiting couple where it had been conveyed into joint names without an explicit declaration of their respective beneficial interests was on the basis that where there was joint legal ownership there was also joint beneficial ownership. If this is challenged, the onus lies on the challenger to show why the beneficial interests should lie differently.

Adealon International Proprietary Ltd v London Borough of Merton [2007] EWCA Civ 362 (25 April 2007)

Wed, 25 Apr 2007 00:00:00 GMT

Where there was a realistic possibility of alternative access over land belonging to third parties and a right of way had not been expressly reserved in the transfer of the land, a claim to such a right must fail.

William Allen & Ann Allen & Others v. Thomas Matthew MacTaggart & Fiona Mary Hendry or MacTaggart [2007] CSIH 24

Thu, 29 Mar 2007 23:00:00 GMT

Appeal under Section 11(1) and (7) of the Tribunals and Inquiries Act 1992

West v London Borough of Newham & Anor [2007] EWCA Civ 304 (22 February 2007)

Thu, 22 Feb 2007 00:00:00 GMT

The appellant tenant successfully appealed a decision of a judge to make a declaration in favour of the respondent local authority that a strip of land adjacent to her property did not fall within her tenancy. The judge had failed to examine the extrinsic evidence properly and had erroneously considered one element of the evidence, namely to do with the existence of a fence, to be determinative.

Palfrey v Wilson & Anor [2007] EWCA Civ 94 (15 February 2007)

Thu, 15 Feb 2007 00:00:00 GMT

The Appellant unsuccessfully appealed against an order that a wall between his property and the property of one of the respondents belonged to the latter. The CA held that a holistic approach was required and the judge was not required to consider each and every event and assess its individual merit.

Legal & General Assurance Society Ltd v Expeditors International (UK) Ltd [2007] EWCA Civ 7 (24 January 2007)

Wed, 24 Jan 2007 00:00:00 GMT

Two commercial leases were terminated by the tenant serving break notices. The tenant reached settlement with the landlord on a dilapidations claim and the landlord in reaching this settlement waived any further compliance by the tenant of the furtrher conditions of the break notice.

Charity of Sir John Morden (Trustees of) v Mayrick [2007] EWCA Civ 4 (12 January 2007)

Fri, 12 Jan 2007 00:00:00 GMT

The Appellant could not argue that at the date of a compromise agreement he had title to land by way of adverse possession as he had not made such an assertion at the time of the agreement.

Doherty v Brimingham City Council & Anr, CA, 21/12/2006

Thu, 21 Dec 2006 00:00:00 GMT

The Appellant traveller unsuccessfully appealed a possession order against him as a challenge pursuant to Art.8 of the European Convention on Human Rights was not open to him on the facts of the case.

Broadway Investments Hackney Ltd v Grant [2006] EWCA Civ 1709 (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

A lease which required the use of the lower part of premises for business purposes and no other, whilst the top part was permitted for residential, amounted to a business tenancy within the meaning of the Landlord and Tenant Act 1954, section 23(1).

Aberdeen City Council v. Alok Wanchoo [2006] CSOH 196

Tue, 19 Dec 2006 00:00:00 GMT

Proof - Servitude Rights of Access

Abacus Estates Limited v. Bell Street Estates Limited Clinton Cards (Essex) Limited [2006] CSOH 192

Fri, 15 Dec 2006 00:00:00 GMT

Procedure Roll - Dilapidations - Liabilities of te

Goodchild v Bradbury & Ors [2006] EWCA Civ 1868 (15 December 2006)

Fri, 15 Dec 2006 00:00:00 GMT

A transfer of land by an elderly great uncle to his great nephew was set aside as it could not be shown that full, free and informed consideration had been given but rather the transfer was held to be the result of undue influence.

Richmond Court (Swansea) Ltd v Williams [2006] EWCA Civ 1719 (14 December 2006)

Thu, 14 Dec 2006 00:00:00 GMT

Where a landlord refused to install a stair lift in a block of residential flats, he was not discriminating against the disabled tenant as his reasons for refusing did not relate to her disability.

Reichman & Anor v Beveridge & Anor [2006] EWCA Civ 1659 (13 December 2006)

Wed, 13 Dec 2006 00:00:00 GMT

The Appellant tenant was unsuccessful in his appeal against a decision that his landlords were under no duty to mitigate their loss when seeking to recover rent arrears, where the tenant had failed to pay rent due under a lease and had abandoned the demised premises.

Wilcox v Tait [2006] EWCA Civ 1867 (13 December 2006)

Wed, 13 Dec 2006 00:00:00 GMT

Equitable accounting should more properly should be carried out after sale of a property where a declaration as to joint beneficial interests had been made.

Moncure v. Cahusac (as Executor of the Estate of Doris Cahusac-Delisser) (Jamaica ) [2006] UKPC 54 (22 November 2006)

Wed, 22 Nov 2006 00:00:00 GMT

The landlord accepted rent from the tenant for a number of years. The tenant claimed to have exercised an option to renew and the landlord was estopped from denying that the tenant was entitled to a further 5 year term. In the light that the landlord had accepted rental payments the landlord's claim for possession failed.

Westbury Estates Limited v. The Royal Bank of Scotland plc [2006] CSOH 177

Wed, 22 Nov 2006 00:00:00 GMT

Debate

Ali v Lane & Anor [2006] EWCA Civ 1532 (21 November 2006)

Tue, 21 Nov 2006 00:00:00 GMT

Where a conveyance of land was unclear or ambiguous a judge was entitled to have regard to extrinsic evidence such as that relating to the physical features of the land at that time. Evidence of subsequent conduct could also be taken into account provided it was of probative value in determining what the original parties to the conveyance had intended.

Ferguson Latimer & Anor v Carney & Ors [2006] EWCA Civ 1417 (27 October 2006)

Fri, 27 Oct 2006 00:00:00 GMT

The court could infer from the estimated costs of repairs to a property, the diminution in the value of the reversion. Thus expert evidence as to the diminution in value for the purposes of calculating damages under section 18(1) of the Landlord and Tenant Act 1927 was not necessary.

Rehman v Benfield [2006] EWCA Civ 1392 (26 October 2006)

Thu, 26 Oct 2006 00:00:00 GMT

The occupiers of a property claimed adverse possession. Their claim failed because during the relevant 12 year period they had entered into a sham lease purporting to be with the owner of the land. This acknowledged the owner's title to the property.

Regan v Paul Properties Ltd & Ors [2006] EWCA Civ 1391 (26 October 2006)

Thu, 26 Oct 2006 00:00:00 GMT

In a case concerning a continuing nuisance the discretion to award damages in lieu of an injunction should be exercised only in very exceptional circumstances. In the present case the nuisance concerned infringement of the right to light and an injunction should have been granted.

Oakfern Properties Ltd v Ruddy [2006] EWCA Civ 1389 (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

Where there was a landlord of a number of flats and a tenant and sub tenant of one of the flats, the maintenance charge levied by the tenant on the sub tenant was a "service charge" that fell within the meaning of section 18(1) of the Landlord and Tenant Act 1985 and could be challenged in the Leaasehold Valuation Tribunal.

Taylor & Anor v Crotty & Anor [2006] EWCA Civ 1364 (03 October 2006) (

Tue, 03 Oct 2006 00:00:00 GMT

The Appellant Landlords unsuccessfully appealed against a decision awarding specific performance of an option to purchase contained in a tenancy agreement. The tenants had validly executed the same.

Princes House Ltd & Anr v Distinctive Clubs Ltd, ChD, Jonathan Gaunt QC, 25/9/06

Mon, 25 Sep 2006 00:00:00 GMT

The Claimant Landlord claimed on account service charge payments from the Defendant Tenant and the latter counterclaimed in respect of the Landlord’s failure to carry out roof repairs at the relevant time. The Landlord had not used all reasonable endeavours to repair the roof and should and could have completed the works by the end of 2003. Accordingly The Tenant was entitled to recover damages on its counterclaim equal to the cost of the contributions to the roof repair sought by the Landlord and the instalment already paid by the Tenant and any future instalments.

Rowland Alan Owers & Anr v Karl Ernest Bailey, ChD, Nicholas Strauss QC, 22/9/2006

Fri, 22 Sep 2006 00:00:00 GMT

The Claimant freehold property owners obtained a declaration that their property had the benefit of a right of way acquired by prescription over a track. Aggravated damages were awarded against the Defendant neighbour for interference with a right of way, as his behaviour was intimidatory, unpleasant and malicious.

Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd [2006] EWHC 3589 (Ch) (04 September 2006)

Mon, 04 Sep 2006 00:00:00 GMT

The Claimant company was unsuccessful in its application for an injunction to prevent interference with its right to light in respect of four windows of its premises allegedly caused by a building owned by the Defendant as the Claimant had boarded up the windows throughout the entire prescription period so that no right to light was acquired in respect of the windows. Compensation by a small money payment would be adequate.

Capita Trust Co Ltd v Chatham Maritime J3 Developments, Pumfrey J, 28/8.2006

Mon, 28 Aug 2006 00:00:00 GMT

The Claimant obtained an injunction compelling the Defendant to grant an underlease to a major retailer. The failure to grant the underlease would amount to a breach of management obligations under the lease.

Manus O’Donnell v. Graham McDonald

Wed, 23 Aug 2006 19:00:00 GMT

Appeal to Sheriff Principal – Agricultural Tenancy

Majorstake Ltd v Curtis [2006] EWCA Civ 1171 (08 August 2006)

Tue, 08 Aug 2006 00:00:00 GMT

The Court of Appeal construed the meaning of the term "premises in which the flat is contained" within the Leasehold Reform, Housing and Urban Development Act 1993 section 47(2)(b). The Court held that it could mean two flats in a building that were horizontally or vertically contiguous.

Rysaffe Trustee Company (CI) Ltd & Anor v Ataghan Ltd & Ors [2006] EWHC 2324 (Ch) (08 August 2006)

Tue, 08 Aug 2006 00:00:00 GMT

The Defendants were estopped from claiming that Claimant trustees of a family settlement were not entitled to possession of a site of land.

Yeoman's Row Mangement Ltd v Mainwaring & anr, CA, 31/7/2006

Mon, 31 Jul 2006 00:00:00 GMT

The Court of Appeal held that the judge had been entitled to find that the Claimant property developer had proprietary estoppel against it. The Court also held that the judge had been entitled to grant the developer a lien for 50% of the increase in value of a property. Other options such as reimbursement would not be adequate compensation and putting a value on the loss of the contract would be too speculative.

Earle v Charalambous [2006] EWCA Civ 1090 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

The starting point in assessing damages for a lessor's breach of a repairing covenant is generally the notional reduction in rental value of the property.

Pointon York Group Plc v Poulton [2006] EWCA Civ 1001 (13 July 2006)

Thu, 13 Jul 2006 00:00:00 GMT

An incorporeal hereditament could constitute premises for the purposes of the Landlord and Tenant Act 1954 s.23, in this case the right to use a parking space.

Fletcher v London Borough of Brent [2006] EWCA Civ 960 (07 July 2006)

Fri, 07 Jul 2006 00:00:00 GMT

A notice to quit by the Appellant’s wife was effective in terminating a secure joint tenancy whether or not he concurred. In order to determine whether he was homeless pursuant to the Housing Act 1996 s.175 it was necessary to consider whether the Appellant had a licence to occupy and what were its terms.

Norman & Anor v Secretary of State for the Environment, Food & Rural Affairs [2006] EWHC 1881 (Admin) (05 July 2006)

Wed, 05 Jul 2006 00:00:00 GMT

A landowner’s evidence as to his intention to dedicate the footpath on the ground should have been taken into account by a planning inspector with regard to s.31(1) of the Highways Act 1980.

Walker v Birmingham City Council [2006] EWCA Civ 815 (22 June 2006)

Thu, 22 Jun 2006 00:00:00 GMT

The Appellant successfully appealed a decision that he was not entitled to succeed to a secure tenancy on the death of his mother. The Appellant’s mother had been a joint tenant and had become sole tenant on her husband’s death before secure tenancies were created. She was not a “successor” within s.88 of the Housing Act 1980.

Church Commissioners for England v Meya [2006] EWCA Civ 821 (21 June 2006)

Wed, 21 Jun 2006 00:00:00 GMT

The Claimant sought possession of a flat let to the Defendant under an assured shorthold tenancy. The term of the last agreement was one year less a day and rent was expressed as a yearly figure but was paid quarterly in advance. The landlord gave the tenant notice to quit but onyl gave a quarter's notice. The question for the court was whether pursuant to section 5(3)(d) of the Housing Act 1988 the notice expired on the last day of a period of the tenancy. The Court of Appeal held that the rent was payable quarterly and that a quarter was a period of the tenancy. The correct notice had been given and possession was ordered.

Warborough Investments Ltd v Central Midlands Estates Ltd & Anr (Michael Briggs QC), 14/06/06

Wed, 14 Jun 2006 00:00:00 GMT

The landlord left a rent review notice on the Defendant lessee by leaving a copy at the demised premises which was a supermarket business. Service was effected by giving the copy to a person on the customer services desk. It was held that the valid service had been effected by the process server.

Carphone Warehouse UK Ltd v Malekout [2006] EWCA Civ 767 (14 June 2006)

Wed, 14 Jun 2006 00:00:00 GMT

Carphone Warehouse UK Ltd v Malekout, (CA) 14/06/06

Northstar Land Ltd v Maitland Brooks & Anor [2006] EWCA Civ 756 (14 June 2006)

Wed, 14 Jun 2006 00:00:00 GMT

The appellant purchaser unsuccessfully appealed against the dismissal of its claim for specific performance of a contract for sale of a property. It was held that where the appellant’s solicitor had requested an extension of time for completion from the vendor’s solicitor, and the vendor’s solicitor had said they would take their client’s instructions but then did not revert back, no reasonably competent solicitor could have concluded from the silence of the other side that they were agreeing to postpone completion.

Pirabkaran v Patel & Anr, CA 26/5/06

Fri, 26 May 2006 00:00:00 GMT

Section 2 of the Protection from Eviction Act 1977 provides that the act gives protection to premises let "as a dwelling". The Court of Appeal held that this phrase meant properties that a let wholly or partly as a dwelling. In this case the property was a mixed business and residential use and the tenant was therefore protected from an unlawful eviction from the residential part of the building.

Oxfordshire County Council v Oxford City Council & Anor [2005] EWCA Civ 175 (24 February 2005)

Wed, 24 May 2006 00:00:00 GMT

The House of Lords held that in order to satisfy the definition of "town or village green" in the Common Registrations Act 1965 it was necessary for the inhabitants of that locality to "continue" to use the land for sports and pastimes for a period of 20 years until the date of application for registration.

Neville v Cowdray Trust Ltd & Anor [2006] EWCA Civ 709 (05 May 2006)

Fri, 05 May 2006 00:00:00 GMT

The Court of Appeal held that the tenant was not entitled to purchase the freehold of a property. The judge had erred in holding that the subject property had no rateable value. In fact the property consisted of two cottages and had a rateable value of the two cottages. The rent was £100 and this was not less than 2/3 of the rateable value of £158. The low rent test of the Leasehold Reform Act 1967 had not been satisfied.

Simon Stephen v. The Most Noble Sir Guy David Innes Ker and Others [2006] CSOH 66

Wed, 03 May 2006 00:00:00 GMT

Procedure Roll - Notices to Quit - Tacit Relocatio

Habib Bank Ltd v Tufail [2006] EWCA Civ 374 (07 April 2006)

Fri, 07 Apr 2006 00:00:00 GMT

The Respondent mortgagor had affirmed the existence of a mortgage in faqvour of the Appellant bank. Despite this the court at first instance and the Court of Appela held that it would not be inequitable for to allow her to assert that the mortgage should be set aside on the ground of misrepresentation.

Abbey National Bank Plc v Stringer & Ors [2006] EWCA Civ 338 (07 April 2006)

Fri, 07 Apr 2006 00:00:00 GMT

A mother and son jointly owned a property. They obtained a second mortgage from the Appellant in order to find the son's business. The mother was unable to read English and did not have the document explained to her. The bank sought possession of the property after default in meeting the mortgage repayments. It was held first that the trial judge had been entitled to have inferred from the circumstances that the son's involvement was only nominal and that the beneficial interest in the property was held by the mother. He was also entitled to conclude that there was a presumption of undue influence between the mother and son as she was vulnerable and was unable to read English and had limited understanding of the language.

Munt v Beasley [2006] EWCA Civ 370 (04 April 2006)

Tue, 04 Apr 2006 00:00:00 GMT

The Appellant tenant successfully appealed against a decision giving damages to the Respondent landlord for trespass and breach of covenant as the tenant had converted loft space which the landlord claimed was not part of the tenant's demise. On appeal it was held that the case for an order for rectification was established but even if that was wrong, the landlord was estopped from denying the loft to be subject to the lease as no complaint about the conversion works had been made for years.

Morshead Mansions Ltd v Mactra Properties Ltd [2006] EWCA Civ 492 (03 April 2006)

Mon, 03 Apr 2006 00:00:00 GMT

A consent order which settled a dispute between the parties in their relationship as landlord and tenant did not do so with regard to their relationship as company and shareholder as there was a practical distinction between the two.

Fitzroy House Epworth Street (No. 1) Ltd. & Anor v The Financial Times Ltd. [2006] EWCA Civ 329 (31 March 2006)

Fri, 31 Mar 2006 00:00:00 GMT

The Appellant landlords were unsuccessful in appealing a decision that the Respondent tenant had successfully terminated its lease pursuant to a notice given by the tenant under a break clause. The landlord alleged that the tenant had failed to "materially comply with" its repairing obligations. The judge found that the tenant may have taken reasonable steps to comply however this was irrelevant to the objective question of material compliance. The relevant question was whether, in light of the findings by the judge, the tenant had materially complied with its obligations and the answer was in the affirmative.

Islington v UCKAC & Anor [2006] EWCA Civ 340 (30 March 2006)

Thu, 30 Mar 2006 00:00:00 GMT

The Housing Act 1985 contained a lacuna in that an assignee of a secure tenancy, who had taken part in the fraudulent misrepresentation that induced the landlord to grant the tenancy to the original tenant, was able to resist an order for possession and thereby take advantage of his own fraud as the common law remedy of rescission of the tenancy was not available to the landlord, but rather they had to follow the code set out in Schedule 2 of the Act.

Notting Hill Housing Trust v Roomus [2006] EWCA Civ 407 (29 March 2006)

Wed, 29 Mar 2006 00:00:00 GMT

The landlord served notice under section 21(4) Housing Act 1988 stating possession is required "at the end of your period of your tenancy". The court conisdered the phrase meant after the end of the tenancy rather than the split second in time the tenancy came to an end. It was therefore a valid notice.

Basildon District Council v Wahlen [2006] EWCA Civ 326 (28 March 2006)

Tue, 28 Mar 2006 00:00:00 GMT

In resolving rival claims for possession of a property and the right to buy, the court should carry out a balancing exercise and it was an essential ingredient of any judgment that it contain some reasoning explaining how the balancing exercise was carried out and why it comes down in favour of one party.

Mallet & Sons Ltd v Grosvenor West End Properties CA, 21/3/06

Thu, 23 Mar 2006 00:00:00 GMT

A court should consider a property and whether it was designed or adapted for living in at the time notice was served when deciding if it satisfied the definition of a house for the purpose of s.2(1) of the Leasehold Reform Act 1967.

Waycourt Ltd v Viscount Chelsea Cadogan Estates Ltd [2006] EWCA Civ 511 (20 March 2006)

Mon, 20 Mar 2006 00:00:00 GMT

The head lessee had altered the basement of two premises tunring vaults into a kitchen and dining area. The freeholder served a section 146 notice claiming breach of covenant and in particular a change of layout. The court held that this alteration did amount to a breach and was a change in layout. The section 146 notice that had been served was sufficient to bring the breach to the attention of the lessee.

Storo Enso OYJ v. Port of Dundee [2006] CSOH 40

Wed, 08 Mar 2006 00:00:00 GMT

Commercial Action - Preliminary Proof - Breach of

Marlborough Park Services Ltd v Rowe & Anr CA, 7/3/06

Tue, 07 Mar 2006 00:00:00 GMT

A court would not imply words of qualification into a lease unless it was obvious or necessary. In this particular case there was no need to qualify the lease as the term "main structures" must have included the floor joists as they kept the structure of the building sound.

Ben Cleuch Estates Limited V. Scottish Enterprise [2006] CSOH 35

Wed, 01 Mar 2006 00:00:00 GMT

Action for Declarator re Notice for Termination of

Kent & An v Kananagh & Anor CA, 10 EG 155 2006 (Date Unknown)

Wed, 01 Mar 2006 00:00:00 GMT

The first part of the rule in Wheeldon v Burrows (1879) LR 12 Ch D 31 has no application on a conveyance made on enfranchisement under s.8(1) of the Leasehold Reform Act 1967. The application of the second rule in Wheeldon was limited by the need to construe the conveyance executed so as to give effect to the common intention of the parties and by s.10(2)(ii).

Kerr v Stephens [2006] EWCA Civ 187 (15 February 2006)

Wed, 15 Feb 2006 00:00:00 GMT

The court determined as a preliminary issue that there was sufficient evidence of occupation of a property as a residence in order to afford protection under the Rent Act 1977.

Meretz Investments NV & Anor v ACP Ltd & Ors [2006] EWHC 74 (Ch) (30 January 2006)

Mon, 30 Jan 2006 00:00:00 GMT

Where a mortgagee exercises his power of sale with mixed motives, including to recover the debt secured by the mortgage, his exercise of the power of sale would not be improper, but where no part of his motive was to recover the debt, the power of sale would be invalidated.

Southwark London Borough Council v O'Sullivan, CA, 27/1/06

Fri, 27 Jan 2006 00:00:00 GMT

The Appellant successfully appealed a decision by the Judge in a trial of a preliminary issue as to whether a tenancy was capable of enforcement by him after its termination. The Judge found that there might be an issue as to whether the Appellant had operated a trigger of a condition in a tenancy agreement. The CA held that he was wrong not to hear any evidence as he had thereby pre-empted the determination of whether the condition was operative.

Kilmartin SCI (Hulton House) Ltd v Safeway Stores [2006] EWHC 60 (Ch) (27 January 2006)

Fri, 27 Jan 2006 00:00:00 GMT

In calculating the net internal area of a building, the area to be included pursuant to the RICS Code of Measuring Practice, was the area that could be used for any sensible purpose in connection with the purposes for which the premises were to be used.

Burgerking Ltd v Rachel Charitable Trust [2006] CSOH 13

Wed, 25 Jan 2006 00:00:00 GMT

Civil - Withholding of Landlord's Consent to Sub-L

Shepherd & Ors v Turner & Anr, CA, 23/1/06

Mon, 23 Jan 2006 00:00:00 GMT

The Appellant appealed the Lands Tribunal’s decision to permit modification of restrictive covenants concerning 8 houses in a road. One owner wished to erect a house on land to the rear of the house. The Lands Tribunal allowed the modification under section 84(1)(aa) of the Law of Property Act 1925 and this was upheld by the Court of Appeal. The Court held that “reasonable user” referred to long term use rather than any nuisance caused by the construction works.

South Esk Trust Company Limited, Elsick Farms Limted v Angus Council NYNAS UK AB Harry Lawson Limited Scottish Water [2006] CSOH 006

Fri, 20 Jan 2006 00:00:00 GMT

Civil Reparation - Procedure Roll- Duty of Care Fo

Crossley v Crossley [2005] EWCA Civ 1581 (21 December 2005)

Wed, 21 Dec 2005 00:00:00 GMT

Real Property. The appellant appealed against the finding that the beneficial interest in a property was held equally by her and her son. The property had been purchased under the right to buy legislation but the transfer document did not set out the parties' respective beneficial interests. The appellant and her husband provided the deposit and the mortgage was taken out in their names along with their son. After the husband’s death the appellant and respondent paid the mortgage. The court upheld the trial judge's finding that there was a common communicated understanding that the respondent would acquire a beneficial interest. The judge was entitled to find a beneficial joint tenancy.

Littman & Anor v Aspen Oil (Broking) Ltd [2005] EWCA Civ 1579 (19 December 2005)

Mon, 19 Dec 2005 00:00:00 GMT

The Court of Appeal upheld the trial judge's decision that it was obvious a mistake had been made in drafting a lease. The word "landlord" in clause 10 should have read "tenant", otherwise this would have rendered the meaning of the clause absurd. If there had been a need for the court to order rectification it would have done so as the four conditions of a unilateral mistake were made out.

Europe and Jersey Estates V. Stephen Reid

Wed, 07 Dec 2005 00:00:00 GMT

unkown

White & Anor v Riverside Housing Association Ltd [2005] EWCA Civ 1385 (06 December 2005)

Tue, 06 Dec 2005 00:00:00 GMT

The housing association let a property under an assured tenancy whereby rent could be increased in June of each year. The association wished to change this to April and wrote to the tenants informing them of this. The association sought possession and this was defended on the basis that rent was not due as the landlord had departed from the contractual rent variation procedures. The Court held that in this case time was of the essence in the procedure and there was no scope to apply the presumption that time was not of the essence.

Avonridge Property Co Ltd v Mashru, (HL) 1/12/05

Thu, 01 Dec 2005 00:00:00 GMT

The House of Lords found that the Landlord and Tenant (Covenants) Act 1995 did not render a clause under the lease void. The said clause meant that the tenant had to pay rent arrears under the headlease as the clause limited in time the landlord's liability for rent arrears. The statute was not intended to curtail the parties' right to limit liability under covenants from the outset in whatever way they agreed.

Manchester City Council v Higgins, CA, 24/11/05

Thu, 24 Nov 2005 00:00:00 GMT

C successfully appealed a suspended possession order made against D, the tenant, who lived with her three children. C had obtained an anti-social behaviour order (ASBO) against D's son who acted in breach of the order and caused C to bring possession proceedings for breach of tenancy in causing nuisance or harrassing neighbours. CA held that the lower court had erred in finding there was hope of some sort of improvement in the son to justify a suspended order and had failed adequately to take into account the effect of the ASBO on H's neighbours as required by the Housing Act 1985 s85A. In the absence of any remorse or well founded expectation of improvement, an immediate possession order was necessary and proportionate under the European Convention on Human Rights 1950 Art.8 in order to protect the rights of the neighbours.

Wilderbrook Ltd v Oluwu [2005] EWCA Civ 1361 (16 November 2005)

Wed, 16 Nov 2005 00:00:00 GMT

In order to rebut the presumption that time is not of the essence in rent review clauses there must be clear and explicit contra indications in the lease. The deeming provisions in the lease meant that such clear contra indications did not exist in this case.

Irontrain Investments Ltd v Ansari [2005] EWCA Civ 1681 (15 November 2005)

Tue, 15 Nov 2005 00:00:00 GMT

The long lease Tenant failed in its appeal against a decision to award damages to the landlord in respect of losses suffered due to damage caused to property. Works had been carried out by the tenant to his flat, causing water to leak through the ceiling and cause damage to a flat below which the landlord had rented out on a shorthold tenancy. The Landlord was entitled to claim damages to recover the loss in rent payable by the tenant in the flat below as a result of the damage caused to the flat by the Tenant's negligence.

Ross Honeybourne v. Ian Burgess and Others

Tue, 15 Nov 2005 00:00:00 GMT

Occupiers Liability:

JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921 (15 November 2005)

Tue, 15 Nov 2005 00:00:00 GMT

The deprivation of land under the Limitation Act 1980 and the Land Registration Act 1925 was in breach of Article 1 of the First Protocol of the European Convention of Human Rights. In this case the applicant had been deprived of property and received no compensation for the loss. It imposed a disproportionate and severe burden on the applicant.

Ruddick v Ormston, ChD, Patten J, 15/11/05

Tue, 15 Nov 2005 00:00:00 GMT

C sought specific performance of an alleged contract with D for the sale of D's flat. C wrote on two diary pages what he alleged was a binding contract for the sale of the flat. However, the claim failed as the disary pages did not comply with sec.2(1) of the Law of Property (Misc. Provisions) Act 1989 because neither page contained mutual obligations to buy and sell and the completion date was not specified in the diary pages.

Clear Channel UK Ltd v Manchester City Council [2005] EWCA Civ 1304 (09 November 2005)

Wed, 09 Nov 2005 00:00:00 GMT

C appealed against the decision that an agreement between C and D, the local authority, pursuant to which C erected and maintained large advertising displays at sites owned by D, created a licence rather than a tenancy. The appeal was unsuccessful, the CA holding that the locations of the displays were not precisely defined and it was therefore clear that there was no intention to grant exclusive possession to C and accordingly there was no tenancy.

R (on the application of Sinclair Gardens Investments (Kensington) Limited) v Lands Tribunal, CA, 8/11/05

Tue, 08 Nov 2005 00:00:00 GMT

Where the Lands Tribunal refused permission to appeal the decision of the leasehold valuation tribunal, this decision was subject to be judicial reviewed, but only where the decision was wrong in law and the error was sufficiently grave to be treated as exceptional.

Fitzroy House Epworth Street (No 1) Ltd & Anor v The Financial Times Ltd [2005] EWHC 2391 (TCC) (04 November 2005)

Fri, 04 Nov 2005 00:00:00 GMT

A lease contained a break clause allowing the Defendant tenant to terminate so long as it had materially complied with its obligations under the lease. The dispute was whether there had been material compliance. It was held that not every defect had to be remedied. The standard of repair was of the reasonably minded tenant and a breach would only be material if it jeopardised the interests of the landlord.

Davies Attbrook (Chemists) Ltd v Benchmark Group PLC, ChD, Lewison J, 26/10/2005

Wed, 26 Oct 2005 00:00:00 GMT

The Defendant Landlord sought permission to amend its acknowledgment of service to include a landlord's redevelopment break option in the new lease. It was held that as the proposed amendment was made in good faith and raised a triable issue with a reasonable prospect of success it would not prejudice the tenant if permitted.

Mount Cook Land Ltd v Joint London Holdings Ltd & Anor [2005] EWCA Civ 1171 (07 October 2005)

Fri, 07 Oct 2005 00:00:00 GMT

The court gave the word "victualler" in a lease the meaning of a person who supplies food and drink. The meaning was not restricted to licensed victuallers. In the crcumstances the landlord was entitled to prohibit use of premises as a sandwich shop.

Tennant & Anor v Adamczyk & Anor [2005] EWCA Civ 1239 (04 October 2005)

Tue, 04 Oct 2005 00:00:00 GMT

The Court of Appeal held that the trial judge had erred in relying upon events post october 1991 as affirming the position at an earlier date. At the relevant time the Respondents had failed to show sufficient factual possession or intention to possess the land.

Circle 33 Housing Trust Ltd. v Ellis [2005] EWCA Civ 1233 (23 September 2005)

Fri, 23 Sep 2005 00:00:00 GMT

The Claimant landlord successfully appealed against an order setting aside its executed warrant of possession which allowed the Defendant tenant to re-enter. The CA held that the jurisdiction to intervene after eviction had to be based on principle and the tenant had to show an abuse of process or oppression which was absent in the present case.

Simpson v Simpson & Anr, Ch D, Moss QC, 21/9/05

Wed, 21 Sep 2005 00:00:00 GMT

On the evidence a disputed property was held on trust for C. The Court found that the property had been acquired by the Second D, a company, on the basis of an agreement with C’s father that it would hold the property for C’s father or possibly for him and his family.

Dogan v Semali Investments Ltd [2005] EWCA Civ 1036 (04 August 2005)

Thu, 04 Aug 2005 00:00:00 GMT

The appellant landlord opposed the grant of a new lease under section 30(1)(f) of the Landlord and Tenant Act 1954. The trial judge found that there was not a sufficient intention to redevelop. The Court of Appeal held that on the evidence the judge should have found that as there was a reasonable prospect of obtaining planning permission for redevelopment there was a fixed and settled desire to carry out the redevelopment. The landlord had therefore been able to satisfy ground f.

Secretarial Nominee Co Ltd v Thomas & Ors [2005] EWCA Civ 1008 (29 July 2005)

Fri, 29 Jul 2005 00:00:00 GMT

The rationale behind the transitional protection given by s.34(1)(b) of the Housing Act 1988, which provides for continued protected tenancy status, was that the protected tenant was a protected tenant at the time of commencement of the Act.

Wilkins & Anor v Lewis [2005] EWHC 1710 (Ch) (29 July 2005)

Fri, 29 Jul 2005 00:00:00 GMT

The court interpreted a right of way through an agricultural estate and in particular held that the right of way permitted the defendant, his invitees and lawful visitors access to go to the estate for purposes of a commercial shoot but not for the purpose of carrying out agricultural or forestry activity.

Adam v Shrewsbury & Anor [2005] EWCA Civ 1006 (28 July 2005)

Thu, 28 Jul 2005 00:00:00 GMT

The Respondent and the Appellant’s predecessor in title had entered into a conveyance which anticipated the construction of a development, garage and roadway access to the garage. The development never took place. The court held that it could not be said there was a common intention that if the development did not take place the land would be used as a garage and it could not be implied that an immediate right of way existed along the road pursuant to the conveyance.

Helena Housing Ltd v Pinder [2005] EWCA Civ 1081 (28 July 2005)

Thu, 28 Jul 2005 00:00:00 GMT

Landlord and Tenant: The appellants appealed against possession orders. The appellants breached suspended possession orders, remained in possession and became “tolerated trespassers”. The appellants claimed the landlords had waived the breaches and their tenancies had revived. The court held that a landlord could not waive breaches and revive a tenancy without a court order. Just because a tolerated trespasser remained in possession with the landlord’s consent does not generally lead to a new tenancy being created.

Mayor & Commonalty and Citizens of the City of London & Ors v Intercede 1765 Ltd & Anor [2005] EWHC 1691 (Ch) (27 July 2005)

Wed, 27 Jul 2005 00:00:00 GMT

The Defendant sought to develop a building and the Claimant alleged it was in breach of a deed restricting the height of proposed buildings. The court held the development did not breach a height restriction as there was not a uniform horizontal restriction but angled building line needed to be taken into account.

Debenhams Retail Plc & Anor v Sun Alliance & London Assurance Company Ltd [2005] EWCA Civ 868 (20 July 2005)

Wed, 20 Jul 2005 00:00:00 GMT

The CA allowed an appeal by the Appellant landlord in relation to the calculation of rent, which involved an issue as to whether VAT charged on goods sold to customers in the respondent’s department store should be included when calculating turnover for the purposes of assessing rent pursuant to the lease. The CA held that the inclusion of VAT would have given the Respondents an uncovenanted bonus.

London Borough of Tower Hamlets v Barrett & Anor [2005] EWCA Civ 1073 (19 July 2005)

Tue, 19 Jul 2005 00:00:00 GMT

The Appellants were found to be in adverse possession of land next to a public house of which they were tenants. The possessory title in the land vested in the Appellants’ landlord brewer as a tenant acquires possessory title for its landlord. The Respondent’s claim for possession therefore failed.

Fraser & Anor v. Canterbury Diocesan Board of Finance & Ors [2005] UKHL 65 (18 July 2005)

Mon, 18 Jul 2005 00:00:00 GMT

A school was closed in 1995 and the site was sold.The Claimants claimed to be beneficiaries of the proceeds of sale under the Reverter of Sites Act 1987. As the school had been used for the purpose of the education of poor persons within the definition of School Sites Act 1841 there had been no reverter of the site before the 1987 Act came into force.

Savva & Ors v Galway-Cooper [2005] EWCA Civ 1068 (06 July 2005)

Wed, 06 Jul 2005 00:00:00 GMT

The Appellant lessees succeeded in their appeal against the decision that notice had been served on them for the purposes of section 5 of the Landlord and Tenant Act 1987 in relation to right of first refusal for the purchase of leases. The CA held that the concept of service required a formal and specific step and was not intended to refer to documents going out to the world at large.

Littman & Anor v Aspen Oil (Broking) Ltd [2005] EWHC 1369 (Ch) (01 July 2005)

Fri, 01 Jul 2005 00:00:00 GMT

It was obvious that a clause in a lease permitting the landlord to determine the lease by giving not less than six months notice was not conditional upon the tenant having performed its obligations under the lease. The clause had been mistakenly drafted and would be construed to make the landlord’s right to determine unconditional.

West Bromwich Building Society v. Wilkinson & Anor [2005] UKHL 44 (30 June 2005)

Thu, 30 Jun 2005 00:00:00 GMT

The Appellant lender sought to recover a shortfall plus interest over 12 years after the property had been sold. The Respondent alleged the claim was time barred under section 20 Limitation Act 1980. The House of Lords held that section 20 did apply and the claim was time barred.

Chapman & Anor v Godinn Properties Ltd & Ors [2005] EWCA Civ 941 (27 June 2005)

Mon, 27 Jun 2005 00:00:00 GMT

The CA dismissed an appeal by D against a decision that C had obtained adverse possession of land and that D was not entitled to the paper title of the land as it had been registered by D’s predecessors in title by misleading evidence. D had not been able to produce evidence to contradict this finding.

Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)

Mon, 27 Jun 2005 00:00:00 GMT

The CA dismissed D’s appeal against possession on the basis that (1) C had title to sue as it was registered proprietor of the legal charge (2) whilst the power to vary interest rates was subject to an implied term that it would not be exercised improperly or capriciously this did not prevent a lender raising interest rates for genuine commercial reasons and (3) there was no evidence that securitisation arrangements were in place which had the effect of qualifying C’s power to vary interest rates by imposing a minimum rate.

Laiqat v Majid & Ors [2005] EWHC 1305 (QB) (22 June 2005)

Wed, 22 Jun 2005 00:00:00 GMT

The court held that the Respondent’s extractor fan trespassed over the Appellant’s land. The fan protruded through the side wall of the Respondent’s property and overhung the Appellant’s yard. This amounted to an interference with the Respondent’s airspace and was a trespass.

Ricci Stewart v Scottish Widows & Life Assurance Society Plc, QBD (Judge Eccles QC) 22/06/05

Wed, 22 Jun 2005 00:00:00 GMT

The assignee of a tenancy was entitled to recover compensation for loss of profit where the landlord had installed road humps which has caused the tenant company to suffer loss. The tenant company had significant other debts and damages would be awarded on the basis that it had been deprived of a chance of avoiding liquidation and forfeiture. The Claimant was awarded 30% of future profits with damages reduced to allow for taxation.

Sainsbury's Supermarkets Ltd v Olympia Homes Ltd & Ors [2005] EWHC 1235 (Ch) (17 June 2005)

Fri, 17 Jun 2005 00:00:00 GMT

An order was made rectifying the land register to record C’s rights under an option provision in a deed of novation which was held to give rise to an enforceable estate contract as the ultimate purchaser of the land had at all material times understood that another party was entitled to an option.

Ronald Thomson v. Edinburgh City Council

Fri, 17 Jun 2005 00:00:00 GMT

Commercial Lease/ Interim Interdict:

Crestfort Ltd. & Ors v Tesco Stores Ltd & Anor [2005] EWHC 805 (Ch) (25 May 2005)

Wed, 25 May 2005 00:00:00 GMT

D had granted an underlease when there was an absolute prohibition against underletting. D counterclaimed claiming that C had unreasonably withheld consent. The court held that the underlease did not have a repairing covenant and C was entitled to refuse consent.

Wessex Reserve Forces & Cadets Asociation v White & Anr, QBD (Michael Harvey QC) 20/05/05

Fri, 20 May 2005 00:00:00 GMT

Landlord opposed an application for a new business tenancy under ground f. Tenant contended that huts on site were chattels and could not be demolished. Court held that they were the tenant’s fixtures and that landlord could not show requisite intention to demolish tenant’s fixtures.

Joseph Brady v. Bibby Factors Scotland Limited

Wed, 18 May 2005 00:00:00 GMT

Factoring Agreement/Guarantee and Indemnity:

E. & J. Glasgow Limited v. UGC Estates Limited

Mon, 16 May 2005 00:00:00 GMT

Contract - Agreement for Lease:

Hill & Anor v Transport for London [2005] EWHC 856 (Ch) (16 May 2005)

Mon, 16 May 2005 00:00:00 GMT

C claimed adverse possession of land enclosed by arches which supported the A13 flyover. C claimed to have used the land following transfer from the GLC. After the GLC was abolished the land became vested in the Secretary of State and became Crown Land. It was held that D was entitled to rely on the 30 year limitation for adverse possession claims against Crown land.

Fairgate International Ltd v Citibank International Plc [2005] EWCA Civ 569 (12 May 2005)

Thu, 12 May 2005 00:00:00 GMT

The landlord sought to invoke two covenants. The first required the tenant to remove fixtures and fittings and make good and the second was to fit out the premises in accordance with a scheduled specification. The tenant contended that the two covenants were mutually exclusive and the notice requesting reinstatement was void for uncertainty. The court held that they were not mutually exclusive and it was obvious the fit out clause would take precedence. The notice was valid.

Batsford Estates (1983) Company Ltd v Taylor & Anor [2005] EWCA Civ 489 (29 April 2005)

Fri, 29 Apr 2005 00:00:00 GMT

There was a long standing dispute concerning the occupation of agricultural land. In 1985 a notice to quit was served on the occupier and one of the occupants claimed a life tenancy. Negotiations continued until the occupant died in 2000. The occupant’s children claimed adverse possession. The court held that the occupation was with the implied permission of the owner and he was entitled to possession.

Clowes Developments (UK) Ltd. v Walters & Ors [2005] EWHC 669 (Ch) (20 April 2005)

Wed, 20 Apr 2005 00:00:00 GMT

D1’s husband sold his land to C’s predecessor in title on condition he could live there rent free. D1 agreed to give vacant possession at any time and in 1989 C purchased the property and D1 left the property and her daughter and son-in-law (D2 and D3) moved in. In 2001 C sought to determine Ds’ licence. Defendants claimed adverse possession and the court held that D2 and D3 lacked sufficient intention to possess as they believed their entitlement to occupy was by virtue of permission given to D1 by the paper owner.

Foxtons Ltd v Thesleff & Anor [2005] EWCA Civ 514 (19 April 2005)

Tue, 19 Apr 2005 00:00:00 GMT

The Appellant estate agency was entitled to receive commission when contracts had been exchanged but the purchase had not been completed. The terms of the contract were clear and provided the Appellant was entitled to receive the commission upon exchange of contracts.

Scammell & Ors v Dicker [2005] EWCA Civ 405 (14 April 2005)

Thu, 14 Apr 2005 00:00:00 GMT

The CA considered that it would be a complete injustice to conclude that a consent order settling a boundary dispute was void for uncertainty. Whilst it may be difficult to find the line of the disputed boundary on the ground, it was not practically or legally impossible to implement the parties’ agreement.

Robert Bell v. Inkersall Investments Ltd+Prosper Properties LTD+ Micheal Woodcock

Mon, 11 Apr 2005 21:00:00 GMT

Security of Tenure:

Beaulane Properties Ltd. v Palmer [2005] EWHC 817 (Ch) (23 March 2005)

Wed, 23 Mar 2005 00:00:00 GMT

The Defendant trespasser was held not to have acquired possessory title to a field by virtue of 12 years continued trespass in accordance with section 75 of the Land Registration Act 1925, as this was incompatible with the European Convention of Human Rights 1950 Protocol 1 Art.1.

Generay Ltd v Containerised Storage Company Ltd [2005] EWCA Civ 478 (23 March 2005)

Wed, 23 Mar 2005 00:00:00 GMT

The Appellant successfully appealed against a finding of adverse possession in relation to a strip of land to which the Respondent claimed to have acquired title. The CA found that the Respondent’s erection of a temporary fence with the intention of excluding itself from the strip amounted to an interruption of possession.

William Smith (Wakefield) Ltd v Parisride Ltd [2005] EWHC 462 (Admin) (23 March 2005)

Wed, 23 Mar 2005 00:00:00 GMT

The landlord gave the tenant notice to quit and the latter served both a counter-notice for tribunal proceedings and a notice for reference to arbitration. The Agricultural Holdings Act 1986 did not render invalid the counter-notice simply because it was served at the same time as a notice for arbitration.

Moat Housing Group- South Ltd. v Harris & Anor [2005] EWCA Civ 287 (16 March 2005)

Wed, 23 Mar 2005 00:00:00 GMT

The CA held that only in exceptional circumstances should an antisocial behaviour injunction under section 153A of the Housing Act 1996 be made without notice.

9 Cornwall Crescent London Ltd v Kensington and Chelsea [2005] EWCA Civ 324 (22 March 2005)

Tue, 22 Mar 2005 00:00:00 GMT

The Appellant tenants failed in their appeal against the dismissal of their claim that the landlord Respondent had served an invalid counter-notice in relation to collective enfranchisement. The Appellant maintained that the counter-notice proposed an unrealistically high price. The CA held that there was no requirement pursuant to section 21 of the Leasehold Reform, Housing and Urban Development Act 1993 that the landlord’s proposal be “realistic”. Only the lack of good faith could result in the invalidity of the counter-notice under the Act.

NCR Ltd v Riverland Portfolio No1 Ltd [2005] EWCA Civ 312 (21 March 2005)

Mon, 21 Mar 2005 00:00:00 GMT

The CA allowed an appeal by the Appellant landlord that its decision to withhold consent to a proposed underletting was not made within a reasonable time, as this was not an uncomplicated transaction and further that the refusal itself was reasonable as the Appellant was entitled to take account of the position of the end of the lease in relation to which the expert evidence showed that the right of the sub-tenant to seek a new tenancy made a material difference to the value of the property.

Taylor v Lancashire County Council & Anor [2005] EWCA Civ 284 (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

The different treatment of tenants under the Agricultural Holdings Act 1986 whereby there was a different procedure for a tenant facing eviction for failure to maintain a holding and one who failed to improve it was not discriminatory within Art 14 of the ECHR 1950.

Price & Ors v Leeds City Council [2005] EWCA Civ 289 (16 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

The Appellants were gypsies who moved onto the Respondent’s land. The Respondent brought possession proceedings and the Appellants claimed a breach of their human rights pursuant to ECHR 1950 Art 8. Where there was a conflict between a decision of the House of Lords and the European Court of Human Rights concerning the a possible violation of Art 8, the court was bound to follow the decision of the House of Lords. In the circumstances the Appellants could not rely on Art 8 and the Respondent was entitled to possession of the land.

East Renfrewshire Council v. J H Lygate and Partners

Wed, 16 Mar 2005 00:00:00 GMT

Rent Arbitration:

Hemingway Realty Ltd v Clothworkers' Company [2005] EWHC 299 (Ch) (08 March 2005)

Tue, 08 Mar 2005 00:00:00 GMT

Where there was a rent review clause there was no presumption that the clause was exercisable by both landlord and tenant. The lease provided that only the landlord could exercise the right to a rent review. The fact that there was no upwards-only formula did not mean the court should construe the lease as allowing the tenant to call for a review.

The Board of Management of Aberdeen College v. Stewart Watt Youngson and Another

Fri, 25 Feb 2005 00:00:00 GMT

Conveyancing Law:

Cobbe v Yeomans Row Management Ltd & Ors, Rev 1 [2005] EWHC 266 (Ch) (25 February 2005)

Fri, 25 Feb 2005 00:00:00 GMT

C and D agreed to develop land and C was to obtain a percentage of the proceeds of sale. C was induced by D to apply at his own expense for planning permission and spent considerable time and money doing so. D claimed that no agreement existed. C’s reliance on a non contractual promise led the court to hold that a proprietary estoppel arose as a result of D’s unconscionable behaviour. C was awarded a half share of the increased value of the property as a result of obtaining planning permission.

Bellcourt Estates Ltd v Adesina [2005] EWCA Civ 208 (18 February 2005)

Fri, 18 Feb 2005 00:00:00 GMT

A failure by the Appellant landlord to demand rent arrears or service charges from a tenant could not amount to an acceptance of a surrender of the tenancy. In order for a landlord to accept at law a tenant’s surrender there would have to be unequivocal conduct by the parties.

Patel & Ors v Shah & Ors [2005] EWCA Civ 157 (15 February 2005)

Tue, 15 Feb 2005 00:00:00 GMT

The Respondents entered into a series of joint ventures with the Appellants’ predecessor between 1989 and 1990. The property slump resulted in a shortfall between rental income and re-mortgage payments. The Appellants’ predecessor failed to find the shortfall. The Appellants were not entitled to enforce their beneficial rights as the Respondents were entitled to rely upon the equitable defence of laches.

Lancecrest Ltd. v Asiwaju [2005] EWCA Civ 117 (11 February 2005)

Fri, 11 Feb 2005 00:00:00 GMT

The Respondent landlord served on the tenant a trigger notice for a rent review some 54 weeks after the first review date. Despite being late there was no time limit by which a trigger notice had to be served and as time was not of the essence the notice was valid.