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Property Law Cases & Property Statutes with Real Estate Terms


English Property Law Cases USA Property Law Cases Commonwealth Law Cases
(Aus/NZ, Can and others)
English Property Statutes USA Property Statutes Commonwealth Property Statutes

This is a selection of recent English Property Law Cases, with the corresponding Real Estate Term:

PROPERTY LAW CASE

REAL ESTATE TERM

 2014  
Barclays Wealth Trustees (Jersey) Ltd v Erimus Housing Ltd [2014] EWCA Civ, [2014] PLSCS 91 (CA) tenancy at will not periodic tenancy
Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ 382, [2014] EGILR 29 (CA) break clause/notice served by tenant
Jervis v Pillar Denton Ltd [2014] EWCA Civ 180, [2014] EGILR 25 (CA) apportionment of rent by administrator
Marks and Spencer Plc v BNP Parisbas Security Services Trust Company (Jersey) Ltd [2014] EWCA Civ 603, [2014] PLSCS 150 (CA) apportionment of rent on break option
R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31, [2014] PLSCS 158 (SC) as of right use of land
Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd [2013] 147 Con LR 105, [2013] 2 P & CR 4 dilapidation at end of lease

 2013  
Ampurius Nu Homes Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577, [2013] WLR (D) 202 (CA) repudiation delay in development
Canonical UK Ltd v TST Milbank LLC [2012] EWHC 3710, [2013] PLSCS 37 break clause payment of rent
Marks and Spencer Plc v BNP Paribas Securities Services Trust Co [2013] EWHC 1279 break clause payment of rent
Dacorum Borough Council v Sims [2013] EWCA Civ 12, [2013] 15 EG 106 (CA) joint tenancy termination by one tenant
Daejan Investments Ltd v Benson [2013] UKSC 14 (SC) service charge recovery procedure
Elmbid Ltd v Burgess [2013] EWHC 1489, [2013] PLSCS 122 practical completion; sale of land
Hooper v Oates [2013] EWCA Civ 91, [2013] 16 EG 108, 112–113 (CA) damages contract sale of land
Mitchell v Watkinson [2013] EWHC 2266 adverse possession end of tenancy
Peel Land and Property (Ports No 3) v TS Sheerness Steel [2013] EWHC 1658 trade fixture defined
Shebelle Enterprises v The Hampstead Garden Suburb Trust Ltd [2013] EWHC 948, [2013] PLSCS 78 quiet enjoymentdefined
Voyvoda v Grosvenor West End Properties Ltd [2013] UKUT 0334 [2013] PLSCS 198 (UT) leasehold enfranchisement deferment rate

 2012  
Avocet Industrial Estates LLP v Merol Limited [2011] EWHC 3422, [2012] 14 EG 64 break clause in lease explained
Avocet Industrial Estates LLP v Merol Limited [2011] EWHC 3422, [2012] 14 EG 64 cheque defined
Ayannuga v Swindells  [2012] EWCA Civ 1789, [2012] PLSCS 23 (CA) tenancy deposit scheme explained
Betterment Properties (Weymouth) Ltd v Dorset C.C. [2012] EWCA Civ 250 (CA) nec vi, nec clam, nec precario defined
Blemain Finance Ltd v E.Surv Ltd [2012] EWHC 3654 (TCC) professional negligence defined
Cameron v Boggiano [2012] EWCA Civ 157, [2012] 1 EGLR 127 (CA) boundary line defined
Carey-Morgan v Trustees of Sloane Stanley Estate [2012] EWCA 1181, [2012] 48 EG 64 (CA) leasehold enfranchisement valuation
Drysdale v Hedges [2012] EWHC B20, (2012) 162 NLJ 1056 duty of care/negligence
Enfield L.B.C. v Outdoor Plus Ltd [2012] EWCA Civ 608, [2012] 29 EG 86 (CA) trespass defined
Freetown Ltd v Assethold Ltd [2012] EWHC 1351, [2012] 33 EG 44 service of notice
Giles v Tarry [2012] EWCA Civ 837, [2012] 40 EG 114, 116 (CA) easement defined
Gore v Standard (t/a Wyvern Tyres) [2012] EWCA Civ 1248, 42 EG 133 (CA) strict liability defined
Hertfordshire County Council v Secretary of State [2012] EWCA Civ 1473 (CA) material change in the use defined
Hosebay Ltd v Day; Lexgorge Ltd v Howard de Walden Estates [2012] UKSC 41 (SC) house defined
Kettel v Bloomfield Ltd [2012] EWHC 1422 easement defined
Magnohard Ltd v Cadogan Estates Ltd [2012] EWCA Civ 594 (CA) house defined
Moore v Secretary of State [2012] EWCA Civ 1202, [2012] 46 EG 122 (CA) material change in the use defined
Oliver v Symonds easement defined
Perkins v McIver [2012] EWCA Civ 735 (CA) restrictive covenant defined
R (Newhaven Port & Properties) v East Sussex CC [2012] EWHC 647, [2012] 14 EG 63 town and village green defined
R (on application of Health and Safety Executive v Wolverhampton City Council) [2012] UKSC 34, [2012] PLSCS 172 (SC) revocation order defined
Smith v Jafton Properties Ltd leasehold defined
Stadium Capital [No 2] Ltd v St Marylebone Property Co plc damages defined
Suggitt v Suggitt [2012] EWCA Civ 1140 (CA) proprietory estoppel defined
Zarb v Parry [2011] EWCA 1306, [2012] 03 EG 88, 91 (CA) possession defined

 2011  
Berrisford v Mexfield Mexfield Housing Co-operative Ltd term (certainty) defined
Brown v Pretot [2011] EWCA Civ 1421, [2012] 16 EG 104 (CA) boundary line explained
Derrick Barr and Others v Biffa Waste Services Limited nuisance defined
Furmedge v Chester-Le-Street District Council negligence defined
Geary v JD Weatherspoon PLC invitee defined
Grand v Gill structure defined
Great Estates Group Ltd v Digby sole agency defined
Jenson v Faux fit for habitation defined
Jones v Kaney expert witness/negligence defined
Jones v Kernott [2012] 1 AC 776, [2011] 3 WLR 1121, [2012] 1 All ER 1265 (SC) constructive & resulting trust defined
K/S Victoria Street v House of Fraser (Stores Management) Limited authorised guarantee agreement
Lejonvarn v Cromwell Mansions Management Company Ltd ad coelum usque ad centrum or ad coelum usque ad inferos(Lat)
London Tara Hotel v Kensington Close Hotel [2011] EWCA 1356, [2011] 48 EG 86 (CA) as of right defined
NYK Logistics (UK) Ltd v Ibrend Estates BV vacant possession defined
Rosebery v Rocklee ad coelum usque ad centrum or ad coelum usque ad inferos(Lat)
R (Smith) v Land Registry highway defined
Samarenko v Dawn Hill House Limited deposit defined
Scullion v Bank of Scotland (t/a Colleys) duty of care defined & explained
Sharma v Simposh Ltd restitution of a deposit for sale of land
Suurpere v Nice tenancy deposit scheme defined
Welwyn Hatfield Borough Council v Secretary of State enforcement notice defined
Zarb v Parry [2012] 2 All ER 320, [2012] 03 EG 88, 91 (CA) permission defined

 2010  
41-60 Albert Palace Mansions (Freehold) Ltd v Craftrule Ltd leasehold enfranchisement explained
Austin v Southwark LBC secure tenancy/tolerated trespasser
Bocardo SA v Star Energy UK Onshore Ltd damages defined
Clarence House Ltd v National Westminster Bank plc virtual assignment defined
CPC Group Ltd v Qatari Diar Real Estate Investments Co reasonable effort/reasonable endeavour
Dominion Corporate Trustees Ltd v Debenham Properties Ltd literal construction/literal meaning
First Plus Financial Group plc v Hewett undue influence defined & explained
Forty-Five Holdings Ltd v Grosvenor (Mayfair) Estate marriage value defined
Glentree Estates v Favermead Ltd effective cause defined & explained
HXRUK II (CHC) Limited v Marcus Alexander Heaney right of light defined & explained
Hotgroup plc v Royal Bank of Scotland plc notice as required in law
Lambert v Barratt Homes Ltd [Manchester Division] nuisance defined
Link Lending Ltd v Hussein; Link Lending Ltd v Bustard occupation defined
Nicholas Prestige Homes v Neal sole selling right defined
North Eastern Properties Ltd v Coleman writing requirments
Oceanbulk Shipping & Trading SA v TMT Asia Limited without prejudice explained
Paddington Basin Developments Ltd v West End Quay Estate Management Ltd service charge requirements
Patel v Keles business tenancy defined
Phillips v Francis dwelling or dwelling-house
R (Sainsbury's Supermarket Ltd) v Wolverhampton City Council compulsory purchase
Roadside Group Ltd v Zara Commercial Ltd use clause defined & explained
Stadium Capital Holdings (No.2) Ltd v St Marylebone Property Company Plc damages defined
Van Dal Footwear Ltd v Ryman Ltd damages legal requirement for

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Property Case Real Estate Terms & Comments

Lejonvarn v Cromwell Mansions Management Company Ltd [2011] EWHC 3838/Rosebery v Rocklee [2011] 1 EGLR 105

ad coelum usque ad inferos(Lat)

The right to land 'from heaven to hell', which applies in theory to freehold title, has no application to a leasehold interest, even if held for a long term. The property held under a lease is defined by the extent of demised premises as set out in the lease

Mitchell v Watkinson [2013] EWHC 2266

adverse possession

Statutory right to renew a business tenancy does not prevent the tenant's possession from being adverse, i.e. if at the end of a business tenancy the tenant remains in possession, without paying rent, possession adverse to the landlord's can start to run from the end of the tenancy, or the date of the last receipt of rent.

London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356, [2011] 48 EG 86 (CA)

as of right

An implied licence is a question of fact and there has to be some overt act, such as a clear, even though non-verbal, indication that permission has been granted, or a previous licence will be permitted to continue.

R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31, [2014] PLSCS 158 (SC)

as of right

"If a person uses privately owned land 'of right' or 'by right', the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is 'as of right', it is without the permission of the landowner, and therefore is not 'of right' or 'by right', but is actually carried on as if it were by right – hence 'as of right'. The significance of the little word 'as' is therefore crucial, and renders the expression 'as of right' effectively the antithesis of 'of right' or 'by right'."

Jervis v Pillar Denton Ltd [2014] EWCA Civ 180, [2014] EGILR 25 (CA)

apportionment

If a tenant goes into administration, but continues to occupy the leased premises, the rent is payable as an expense of winding up or administration and, therefore, is payable on a 'day-to-day basis' as long as the administrator effectively remains in possession. This is an exception to the normal rule that rent is not apportioned if it is payable for a fixed period in advance (e.g. quarterly).

Marks and Spencer Plc v BNP Parisbas Security Services Trust Company (Jersey) Ltd [2014] EWCA Civ 603, [2014] PLSCS 150 (CA)

apportionment

If rent is paid in advance, upon the exercise an option to break between the rent days, the tenant is not entitle to receive an apportioned amount, unless there is a clear provision in the lease to that effect.

K/S Victoria Street v House of Fraser (Stores Management) Limited [2011] EWCA 330, 32 EG 56 (CA)

authorised guarantee agreement (AGA)

A guarantor of the assigning tenant cannot be required, or voluntarily agree, to guarantee the assignee's obligations under the lease; any such agreement is void and unenforceable.

Brown v Pretot [2011] EWCA Civ 1421, [2012] 16 EG 104 (CA)





Cameron v Boggiano [2012] EWCA Civ 157, [2012] 1 EGLR 127 (CA)

boundary line

Based on Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, 895 (HL) and Pennock v Hodgson (CA) sets out four principles for determining the boundary between properties (1) view parcels clause in conveyance; (2) consider any "attached plan"; (3) consider other evidence; (4) line on plan may be rejected by other evidence (as in this case where actual position of a garage was determinate).

In Cameron, the Court of Appeal determined that physical evidence on the site may well supplant a plan of the land. "If the plan is not, on its own, sufficiently clear to the reasonable layman to fix the boundaries of the property in question, topographical features may be used to clarify and construe it." It also noted "Six days in court is a long time to spend on evidence and argument about who owns a gravel strip of small size and little money value." [emphasis added]

Avocet Industrial Estates LLP v Merol Limited [2011] EWHC 3422, [2012] 14 EG 64

break clause

If the break clause in a lease is conditional on the prior payment of all sums due, the exercise of the clause will be frustrated if the tenant has not paid rent due, even if this includes interest on late payments.

Canonical UK Ltd v TST Milbank LLC [2012] EWHC 3710, [2013] PLSCS 37

break clause - rent payment

Break clause in lease will not take effect if tenant has not paid all amounts of rent and other charges as required under the lease, including any rent due in advance, without any apportionment not expressly provided for in the lease.
Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ 382, [2014] EGILR 29 (CA)

break clause - notice

Notice required to exercise a break clause under a lease must be given using the exact wording as expressed in the lease. The exercise of such an option is not granted the same discretion that may be given to interpreting the meaning of the notice when there is an ambiguity.

Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2013] EWHC 1279

break clause - rent payment - apportionment

Tenant was obliged to pay a premium as a condition of the termination of the lease and, after the end of lease, landlord required to repay rent covering the period after lease end because it could be implied from other provisions of the lease that he should not retain that sum.

Patel v Keles [2009] EWCA Civ 1187, [2010] 2 WLR 1159 (CA)

business tenancy

When the landlord had a prior intention to sell the premises, he was able to oppose the right to a new tenancy on the grounds that he intends to occupy holding for the purpose of carrying on a business "to be carried on by him therein". The intention has to be genuine and, although it need not be for any minimum period of time, it must be "more than short term".

Avocet Industrial Estates LLP v Merol Limited [2011] EWHC 3422, [2012] 14 EG 64

cheque

as payment of rent
If a landlord indicates that he will accept a cheque, and that becomes "the consistent course of dealing between the parties", the landlord cannot subsequently refuse such a form of payment, as long as the cheque is honoured.

R (Sainsbury's Supermarket Ltd) v Wolverhampton City Council [2010] UKSC 20, [2010] 20 EG 144 (SC)

compulsory purchase

The acquiring authority not permitted to take into account a commitment by the developer to carry out work on an unconnected site, adopting similar principles to the "material considerations" relevant to a planning condition.

Jones v Kernott [2012] 1 AC 776, [2011] 3 WLR 1121, [2012] 1 All ER 1265 (SC)

constructive trust – resulting trust

The traditional presumption that a resulting trust arose from unequal contributions to the purchase price of a property does not apply in any case concerning a family home. When a home is held in joint names (whether by a married or unmarried couple) for joint occupation: (i) unless there is evidence to the contrary, the property is held by the parties as joint tenants with equal beneficial interests; but, (ii) the property does not necessarily have to be held in equal shares, the intended share can be imputed from the words and conduct of the parties (including contributions to the cost of the mortgage or upkeep of the property). Thus, if the parties separate, the share in the property can change based on the ongoing 'constructive' intention of the parties.

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2010] 31 EG 63 (SC)

damages

Damages for trespass arising from the laying an unauthorised oil pipeline based upon the amount of compensation that would have been payable as if the right had been acquired by compulsory purchase (which could have been used).

Hooper v Oates [2013] EWCA Civ 91, [2013] 16 EG 108, 112–113 (CA)






John Grimes Partnership v Gubbins [2013] EWCA 37 (CA)

damages

The loss arising from a breach of contract for the sale of land may be assessed some time after the breach. If a property cannot be sold at or shortly after the breach, the eventual resale price, after a reasonable time to sell or to come to a decision to retain the property, is likely to be the figure to be set against the contract price.

damages

A negligent valuer is generally not liable for loss due to market conditions as this may not be foreseeable (South Australia Asset Management Corporation v York Montague Ltd ("SAAMCO") [1997] AC 191 (HL)). However, engineer held liable for his "egregious delay" that led to a residential development being completed as the market was falling. Case reviews issue of remoteness of damages from Hadley v Baxendale, through Heron II to SAAMCO.

Stadium Capital Holdings (No.2) Ltd v St Marylebone Property Company Plc [2010] EWCA Civ 952 (CA)





Stadium Capital [No 2] Ltd v St Marylebone Property Co plc [2011] EWHC 2856, [2012] 04 EG 108, 118

damages

Damages for trespassing hoarding based on “reasonable licence fee” as would be negotiated between the parties but not, as proposed by the High Court, the entire profit derived from the user. Even if there is no actual loss incurred by Defendant damages should still be payable on that basis.

Damages for overhanging advertising hoarding to be "calculated on the basis of a hypothetical negotiation between reasonable persons in the position of the site owner and the wall owner".

Van Dal Footwear Ltd v Ryman Ltd [2010] 1 All ER 883 (CA)

damages

In English law, the damages for the breach of a repairing covenant, during or at the end of the lease, is based on the diminution in the value of the landlord's reversion. This is assessed as the value of the property as if there had been no breach of the repairing covenant less the value of the property in its condition as at the date the landlord retakes possession.

Carey-Morgan v Trustees of Sloane Stanley Estate [2012] EWCA 1181, [2012] 48 EG 64 (CA)

deferment rate

The 'deferment rate' used to capitalise the ground rent on leasehold enfranchisment of a long lease is generally based on a 'low-risk rate' based on government secuities. However, if the lease has a reversion of less that five years, the Court of Appeal accepted the decision of the Upper Tribunal to adopt a rate more in line with market evidence for the particular property.

Sharma v Simposh Ltd [2012] 6 EG 92, [2012] 3 WLR 503 (CA)

deposit/restitution

A deposit paid upon the execution of an agreement for the sale of land may still be returnable even though the agreement was not in writing and, therefore, did not comply with the formalites of the Law of Property (Miscellaneous Provisions) Act 1989, s. 2(1). Developer entitled to retain the deposit under a 'void' contract as it had withdrawn the property from the market under an oral agreement, the prospective purchaser obtained the benefit for which the deposit was paid, and there was "no injustice in the developer retaining the money"

Samarenko v Dawn Hill House Limited [2011] EWCA Civ 1445 (CA)

deposit

In almost all contracts for the sale of land, a deposit is a prequisite; usually payable at the time the contract is executed. If the deposit is payable at a later date, normally time is of the essence. "[T]he vendor almost always requires a deposit to be paid on exchange of contracts. If the purchaser is not willing or able to pay a deposit at that point, the vendor will not exchange contracts. … it is difficult to imagine that a contractual obligation to pay a deposit will ever be anything other than a term of fundamental importance in the contract, that is to say a term which would be regarded at common law as a fundamental term or condition, rather than a warranty or an innominate term, and so any breach of it would entitle the innocent party to treat the contract as at an end. Cf. Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, 1 All ER 474 (CA)", Samarenko v Dawn Hill House Limited.
Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd [2013] 147 Con LR 105, [2013] 2 P & CR 4

dilapidation

“The standard to which the building is to be repaired or kept in repair is to be judged by reference to the condition of its fabric, equipment and fittings at the time of the demise, not the condition that would be expected of an equivalent building at the expiry of the lease”, Sunlife v Tiger Aspect. Also, if market conditions require that, in order to make the premises lettable, expenditure is necessary that would be rendered abortive by the need to upgrade or refurbish the building (i.e. a cost that is superseded, or a principle referred to as 'supersession'), the tenant is not liable for that cost.

Scullion v Bank of Scotland (t/a Colleys) [2011] EWCA Civ 693, [2011] 25 EG 105 (CA)

duty of care

Surveyor not liable to borrower for valuation provided to mortgagee in the case of a purchaser buying a flat to let, because the purchaser unlikely to rely on that valuation, but more likely to obtain his own valuation advice on rental and capital values.

Philips v Francis [2010] 24 EG 118

dwelling or dwelling-house

Where a landlord has a statutory obligation under the Landlord and Tenant Act 1985, ss. 18–30 to supply information to a tenant about the service charges he is seeking to recover, the 'dwelling' does not have to be used as a principal or primary home, but can be a holiday chalet.

Giles v Tarry [2012] EWCA Civ 837, [2012] 40 EG 114, 116 (CA)





Kettel v Bloomfield Ltd [2012] EWHC 1422

easement

Confirmation that a right of way granted for the enjoyment of Parcel A to get to Parcel B does not automatically permit the beneficiary who acquires Parcel C to use that same right of way to the get to the added land. It is not permissible to "substantially' increase the permitted use of an easement without a fresh 'grant'.

A parking space can be the subject of an easement. Following the case Scottish case of Moncrieff v Jamieson [2007] UKHL 42 (Scot). What is essential is that there is a grant of a defined right to park for the benefit of leased flats and that the freeholder retains some rights over the spaces, such as a right to pass by foot, to enter to repair the surface, lay pipes under the land, or even build over the land, so long as he does not unduly restrict the intermitted right to park.

Oliver v Symonds [2012] EWCA Civ 267, [2012] 22 EG 86 (CA)

easement

A right of way cannot be widened to accomodate larger vehicles than originally permitted. As a rule, the adjoining owner can build up to the edge of the right of way, even if that prevents a vehicle swinging outside the designated track. 'Swing space' or 'verge space' does not arise by implication, unless it is clear that the use of the verge is clearly a necessity to the original grant or was intended as part of the original grant.

Glentree Estates, Beauchamp Estates, Savills v Favermead Ltd [2010] EWCA Civ 1473, [2011] EGLR (CA)

effective cause

An agency agreement that provided for an additional commission based on a percentage of any increased price above an agreed minimum, payable in the event of a resale of a property, only required an introduction by one of the agents; it did not require that the agent be the 'effective cause' of the subsequent sale.

Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 15 EG 93 (SC)

enforcement notice

Enforcement notice cannot be avoided when planning permission is obtained, but the intended use is subsequently hidden from the planning authority, e.g. a barn that is subsequently used as a private house.

Suggitt v Suggitt [2012] EWCA Civ 1140 (CA)

estoppel, promissory

Confirmation that proprietory estoppel required "an assurance, reliance and detriment". A father's tenuous promise that son should recieve farm land and a house he had lived in for much of his life upheld, even though this was granted by will to the daughter (along with all the father's estate). Son did not have to fulfill all his father's expectations, provided there was evidence of a promise and, in relience on the promise, the son had acted to his detriment (by working on the farm for little pay).

Jones v Kaney [2011] 2 WLR 823, [2011] 14 EG 95 (SC)

expert witness; professional negligence

An expert witness may be liable for professional negligence if he gives evidence that is outside his "reasonable expert opinion". The evidence may not be within the duty to provide advice for the court, but may still the client with a claim for negligence towards him. "If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client. If, however, he gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court, because he will have provided independent and unbiased assistance to the court. But he will be in breach of the duty owed to the client"
FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2014] WLR(D) 317 (SC)

fiduciary

“[a]n agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of [his principal] in a particular matter in circumstances which give rise to a relationship of trust and confidence … as a result, an agent must not make a profit out of his trust and must not place himself in a position in which his duty and his interest may conflict … [a] fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to the other. Because of the importance which equity attaches to fiduciary duties, such ‘informed consent’ is only effective if it is given after ‘full disclosure’ … [And] where an agent receives a benefit in breach of his fiduciary duty … that the agent is obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to the profit by way of equitable compensation”


Jenson v Faux [2011] EWCA Civ 423, [2011] PLSCS 107 (CA)

fit for habitation

Statutory obligation to carryout work for the provision of a dwelling "in a workmanlike, or as the case may be, professional manner" does not apply to work of renovation. The Defective Premises Act 1972 refers to the "provision of a dwelling" so that, interpreted strictly, remodelling of an existing dwelling is not affected by the Act, unless the extent of the work amounts to the "provision" of a dwelling or a dwelling that had a "different identity". (Although the person carrying out the work may have a contractual obligation, or a common law duty of care, for the work carried out.)

R (on application of Newhaven Port & Properties) v East Sussex C.C. [2012] EWHC 647, [2012] 14 EG 63

green (town & village) (TVG)

Land does not have to be a 'green' in the traditional sense, i.e. a grassy or mainly grass area. The land has to be used, as of right, by a significant number of the inhabitants of the locality for lawful sports and pastimes, for a period of at least 20 years; and they must continue to do so at the time of the application to register the 'green' (Commons Act 2006, s. 15(2)). Thus, land that is part of a tidal beach may even be considered a 'town and village green: "the nature, quality and duration of use was crucial; the quality of the land was unimportant"

R (Smith) v Land Registry [2010] 11 EG 121, [2010] WLR (D) 72 (CA)

highway

An adverse possessor or 'squatter' cannot acquire title to land under a public highway by adverse possession because, as a rule, he cannot defeat the public's right of access.

Magnohard Ltd v Cadogan Estates Ltd [2012] EWCA Civ 594 (CA)

house

For the purpose of leasehold enfranchisment, a "house" must, inter alia, be "reasonable so called" be a "house" (Leasehold Reform Act 1967, s. 2(1)). This does not mean that because a building might reasonably be called something else (e.g. a 'shop with flats above'), it cannot for this purpose "reasonably" be called a “house”. If a building looks like a house,and especially if it was originally designed as a house, it probably is a "house" and provided it meets the other conditions of the 1967 Act, the appropriate tenant may be able to acquire the freehold. In Magnahold the building comprised eight flats and three shop units, was best described as a 'block of flats' and, therefore was not a "house".

Hosebay Ltd v Day; Lexgorge Ltd v Howard de Walden Estates [2012] UKSC 41 (SC)

house

For the purpose of leasehold enfranchisment, a "house" must be “designated or adapted for living in and reasonably so called …" (Leashold Reform Act 1967), s. 2(1). These requirments are “complementary and overlapping” so that, although a building may be “designed and adapted for living in”, it might not be a house as “reasonably so called”. Thus, a building used entirely, or almost entirely, for commercial purposes is not a "house" for this purpose. Also, in Hosebay, the building did not qualify because “‘living in’ means something more settled than ‘staying in’” the property, which the residents could be said to do. (The 1967 Act as originally enacted did not seek to expressly exclude a business tenancy; but the Act, even as subsequently modified to remove any residency requirement, is not intended to permit the purchase of the freehold by (or the grant of an extended lease to) a tenant who holds a long tenancy of a building now used as offices or a purely commercail purpose).

Geary v JD Wetherspoon PLC [2011] EWHC 1506, [2011] All ER (D) 97

invitee

Inviting someone on to premises does not entitle them to engage in risky activities, such as sliding down the bannister—which the Claimant (Mrs Ruth Geary) did in this case and, therefore, was barred from maintaining a claim for damages (reinforcing decision in The Calgarth; The Otarania [1927] P 93, 110 (CA))

Dacorum Borough Council v Sims [2013] EWCA Civ 12, [2013] 15 EG 106 (CA)

joint tenancy

A joint periodic tenancy of a residence can be terminated by one tenant, without consent of the other party (unless there is an agreement to the contrary). This arrangement is not a contravention of Article 8 of the European Convention of Human Rights which provides that "Everyone has the right to respect for … his home", because the termination of the tenancy is brought about by one of the tenants exercising his or her contractual right, and not by any act of the landlord. The alternative would grant the tenant who had not given notice a sole right to the property, which is not the intent of a joint tenancy.

Smith v Jafton Properties Ltd [2011] EWCA Civ 1251, [2012] 01 EG 56, 61 (CA)

leasehold

Strictly, a lease is an arrangement by which an interest in land called a 'leasehold interest' is created and tenancy is the contract by which a person is given a right to 'hold' land.

41-60 Albert Palace Mansions (Freehold) Ltd v Craftrule Ltd [2010] EWHC 1230, [2010] 31 EG 64







Voyvoda v Grosvenor West End Properties [2013] UKUT 0334 [2013] PLSCS 198 (UT)

leasehold enfranchisement

In the case of collective enfranchisment, a self-contained building can be purchased as a whole, even though it is capable of subdivision into separate 'self-contained' buildings, provided there is a single freeholder and over 50% of the qualifying tenants of the whole want to enfranchise (it does not matter that more than half of the tenants in one of the potential subdivisions do not want to enfranchise).

Deferment rate increased by 0.25% to reflect extra risk assoiated with managing a block of flats compared to a house (but following Daejen Investments Ltd v Banson, not 0.5% as decided in Zuckerman v Calthorpe Estates Trustees.

Dominion Corporate Trustees Ltd v Debenham Properties Ltd [2010] NPC 63, [2010] All ER (D) 264

literal construction

Failure to perform "any of the provisions of the agreement" could not allow one party to avoid a substantial payment on the basis of a minor breach.

Forty-Five Holdings Ltd v Grosvenor (Mayfair) Estate [2009] UKUT 234, [2010] 02 EG 84 (UT)

marriage value

In the case of a statutory right to collective leasehold enfranchisement, when assessing the value of the participating tenant's interest the potential to vary the terms of the tenant's lease after enfranchisement is a factor to be taken into account when calculating the marriage value. In particular, any development value that might arise after the new lease is granted should be brought into account.

Moore v Secretary of State [2012] EWCA Civ 1202, [2012] 46 EG 122 (CA)





Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473 (CA)

material change in the use

(Eng)sup>
Use of an eight bedroom dwelling house for short-term holiday considered a "material change in the use"; this is not always the case, but in this case the property was fundamentally no longer used as a private dwelling house—reviewing three cases on use of a private dwelling house for holiday lettings on a commercial basis).

"[W]hat must be determined is whether the increase in the scale of the use has reached the point where it gives rise to such materially different planning circumstances that, as a matter of fact and degree, it has resulted in such a change in the definable character of the use that it amounts to a material change of use", R v Thanet District Council [2001] 81 P & CR 37, 54. Account may be taken of the effect offsite, but there must still be a "materially different situation in planning terms".

Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250 (CA)

nec vi, nec clam, nec precario

'not by force, not by stealth, not by entreaty'
In the event that a landowner takes steps to demonstrate that it opposes any use or entry on the land, as by erecting suitably worded signs, entry on the land may be considered 'by force'. This is the case even if the signs are regularly removed after they have been replaced, as long as the steps taken to prevent the trespass are "proportionate to the use that the landowner wished to prevent".

Furmedge v Chester-Le-Street District Council [2011] EWHC 1226, [2011] All ER (D) 162

negligence

Public 'occupiers' of an inflatable structure to which the public were allowed access, especially as the local council had failed to make "proper risk assessment" of the security of the sculpture.

Drysdale v Hedges [2012] EWHC B20, (2012) 162 NLJ 1056

duty of care/negligence

A landlord who lets residential premises has a common law duty of care to the tenant. However, this only extends carrying out repairs for which she is liable to a reasonable standard. There is no liability under the Defective Premises Act 1972 if work is not deliberately deficient. (This may absolve a landlord of a duty to ensure the premises are safe for use by the tenant. The Australia High Court has taken the view that the common law view is from a bygone era and that a landlord has a duty of care to the tenant and his children to see that the premises are safe for habitation at least at the time the tenant is allowed into possession (Northern Sanblasting Pty Ltd v Harris (1997) 188 CLR 313 (Aus HC))

Hotgroup plc v Royal Bank of Scotland plc [2010] All ER (D) 280, [2010] 23 EG 107

notice

Notice to exercise break clause in lease invalid when copy not served on property manager as expressly required under terms of lease.

Derrick Barr v Biffa Waste Services [2011] EWCA Civ 312 (CA)

nuisance

A liability for nuisance in the form of smells from a waste disposal and landfill site is not excluded solely because the creator had complied with the statutory environmental requirements.

Lambert v Barratt Homes Ltd [Manchester Division] [2010] EWCA Civ 68, [2010] EG 72, 75 (CA)

nuisance

In common law, the duty to a neighbour is "a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable to prevent or minimise the known risk of damage or injury to one's neighbour or to his property", Leakey v National Trust for Places of Historic Interest or National Beauty [1980] QB 485, 524 (CA).

Lawrence v Coventry (No 2) [2014] UKSC 46, [2014] PLSCS 223 (SC)

nuisance


Link Lending Ltd v Hussein [2010] WLR (D) 424, [2010] 18 EG 98 (CA); Link Lending Ltd v Bustard [2010] EWCA Civ 424, [2010] 28 EG 86, 88 (CA)

occupation

A person may be considered still in 'occupation' even if in hospital or a residential care home, provided there is an intention to return home.

Zarb v Parry [2011] EWCA 1306, [2012] 03 EG 88, 91 (CA)

permission

The acts or words by which an implied permission is given must be "probative of and not merely consistent with the giving of permission", Megarry & Wade: The Law of Real Property (7th ed. London: 2008), p. 1417.

Clarence House v National Westminster [2010] 08 EG 106, 1 WLR 1216 (CA)

possession

Unless there is an express provision to the contrary, possession in a covenant restraining parting with or sharing possession of premises should be given its normal meaning of the right to enter the land to the exclusion of others and not "its extended meaning as including the right to receive rents and profits of land".

Zarb v Parry [2011] EWCA 1306, [2012] 03 EG 88 (CA)

possession

If possession is transitory and incomplete, and the original possessor "never lost control or possession", that does not amount to taking possession in the context of adverse possession.

Elmbid Ltd v Burgess [2013] EWHC 1489, [2013] PLSCS 122

practical completion

Completion of the sale property depended on the issue of a 'certificate of practical completion (CPC)' and once the CPC was issued (even though potentially in error) that was sufficient to trigger the completion date; also, the court expressed the view that the nature of the defects, and the proportion that the cost of the rectification works bore to the total contract price, were relevant when assessing whether 'practical' completion had been achieved.
Blemain Finance Ltd v E.Surv Ltd [2012] EWHC 3654 (TCC)

professional negligence

Reviews acceptable "bracket" or "margin of error" that is accptable when making a valuatation before a valuer may be negligent. Considers that a guideline 'bracket or margin of error' of 5% for a modern house; 10% for most other properties; and over 15% may be acceptable for a "truly one-off" property.
Shebelle Enterprises v The Hampstead Garden Suburb Trust Ltd [2013] EWHC 948, [2013] PLSCS 78 quiet enjoyment

CPC Group Ltd v Qatari Diar Real Estate Investments Co [2010] EWHC 1535

reasonable effort

or reasonable endeavour
"All reasonable but commercially prudent endeavours" is not as stringent as "best endeavours" (or 'endeavors' in American English). Neither requires the sacrifice of commercial interests, unless steps are specified that may have that effect (A.P. Stephens v Scottish Boatowners Mutual Insurance Association (The Talisman) [1989] 1 Lloyd's Rep 535; Rhodia International Holdings Ltd v Huntsman International LLC [2007] EWHC(Comm) 292 , [2007] 2 All ER 577; Yewbelle Ltd v London Green Developments Ltd [2007] EWCA Civ, [2007] 2 EGLR 152 (CA)).

Ampurius Nu Homes Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577, [2013] WLR (D) 202 (CA)

repudiation

Substantial delay in the construction of a mixed-use development, due primarily to funding problems, gave rise to damages, but not a repudiation of the contract as it did not go to the root of the contract, i.e. did not prevent the eventual completion of the development. The delay which was insignificant relative to the intention to lease the completed development for 999 years.

Perkins v McIver [2012] EWCA Civ 735 (CA)

restrictive covenant

A restrictive covenant only benefits the parcel of land for which it was created; it does not affect adjacent land or land added to the same ownership

R (on application of Health and Safety Executive v Wolverhampton City Council) [2012] UKSC 34, [2012] PLSCS 172 (SC)

revocation order

A revocation order for planning permission must take accout of the development plan and "any other material consideration", Town and Country Planning Act 1990, s. 97. Material considerations include the cost of the decision, in particular any compensation payable.

HXRUK II (CHC) Limited v Marcus Alexander Heaney [2010] EWHC 2245, [2010] 44 EG 126

right of light

Injunction granted requiring the removal of part of an office building when developer carried out construction work knowing that it might infringe the neighhbour's right of light, even though loss was quantifiable (appeal pending).

Freetown Ltd v Assethold Ltd [2012] EWHC 1351, [2012] 33 EG 44

service

Service by post is effected when a document is submitted to the post office (Party Wall etc Act 1996, s. 10; Interpretation Act 1978, s. 7). This follows the Court of Appeal in CA Webber (Transport) Ltd v Railtrack dealing with a notice under the Landlord & Tenant Act 1927, s. 23(1). The PWA Act refers to "sending by post" and the LTA 1927 requires "service by registered post". In Freetown, which dealt with the PWA, "sending by post" includes all postal communications: "registered, recorded, tracked and ordinary delivery".

Daejan Investments Ltd v Benson [2013] UKSC 14 (SC)

service charge

A landlord of residential premises must comply with stingent requirements prior to being able to recover any service charge in execess of £250 from any tenant in respect of "qualifying work" (especially repair, maintenance or improvement) (Landlord and Tenant Act 1985, s. 20, as amended). These requirements include extensive consultation on estimates obtainded for work and the subsequent consideration of the views of the tenants. In certain circumstances the Leasehold Valuation Tribunal (LVT) may decide that the consultation requirements may be dispensed with "if satisfied that it is reasonable" to do so. Also the Supreme Court, in a split decision of 3:2, decided that the landlord's failure to properly deal with the review of the estimates was not fatal to recovery of the charges as, in that case, the tenants did not "suffer any relevant prejudice", especially as landlord agreed to make a contribution to the charges.

Austin v Southwark LBC [2010] UKSC 28, [2010] 35 EG 94, 101 (HL)

secure tenancy/tolerated trespasser

Refers to the term 'tolerated trespasser' as an oxymoron as a trespasser is simply "someone who should not be there".

Paddington Basin Developments Ltd v West End Quay Estate Management Ltd [2010] 27 EG 86

service charge

In the case of a tenancy of a dwelling, if the landlord wishes to carry out "qualifying works" or enter into a "qualifying long term agreement" there is a requirement to consult with the tenant. A qualifying agreement covers most contracts for over 12 months where any tenant will be required to contribute more than £100 per accounting period as part of the service charge (LTA 1985, s. 20, as amended).

Great Estates Group Ltd v Digby [2011] EWCA Civ, [2011] 43 EG 104 (CA)

sole agency

In order to comply with the requirements of the Estate Agents (Provision of Information) Regulations 1991 an estate agent must uuse the words in the regultions concisely and the exact circumstances in which a commission is payable must be clear to the client.

Nicholas Prestige Homes v Neal [2010] EWCA Civ 1552, [2010] All ER (D) 22 (CA)

sole selling right

An estate agent with a valid 'sole selling right' entitled to damages (equal to the commission that might otherwise have been earned), even though another agency has been appointed; which effectively resulted in a double commission. Defendant's claimed that the first agent (Claimant) not instructed in writing. Also, email (enclosing an agrrement that provided "sole selling rights") and acknowledged by the defendant, held to be sufficient to create a binding contract.

Gore v Standard (t/a Wyvern Tyres) [2012] EWCA Civ 1248, 42 EG 133 (CA)

strict liability

In the event of fire, storing tyres not a source for strict liability per se; it is the spread of the fire, and not the tyres, that causes the problem. Landowner needs to be grossly negligent in permitting or inducing the spread of the fire. The use of the land has to be "extraordinary and unusual" taking into account all the circumstances.

Grand v Gill [2010] EWCA Civ 554, [2011] 21 EG 95 (CA)

structure

Internal plasterwork is part of the "structure"; it is merely “a smooth constructional finish to walls and ceilings”

Barclays Wealth Trustees (Jersey) Ltd v Erimus Housing Ltd [2014] EWCA Civ, [2014] PLSCS 91 (CA)

tenancy at will

Tenant holding over pending negotiations for new lease not a periodic tenant, but only a tenant at will until terms are agreed or the lease is terminated, even if rent is paid during interim period.

Suurpere v Nice [2011] EWHC 2003, [2011] 39 EG 110

tenancy deposit scheme

Failure to provide the prescribed information about the tenancy deposit scheme to a assured shorthold tenant resulted in the landlord being obliged to pay the tenant three times the amount of the deposit as provided for by statute, even tought the deposit may have been reapid at a later date (Housing Act 2004, ss. 213(6), 214(4)). This is a personal responsibility of the landlord and cannot be circumscribed by information suppied by the government-sponsored Deposit Protection Service (DPS). Recommended a wider dissemination of information from the website of The Deposit Protection Service (Prescribed Information Relating to Tenancy Deposits and Terms & Conditions)

Ayannuga v Swindells [2012] EWCA Civ 1789, [2012] PLSCS 23 (CA)

tenancy deposit scheme

The statutory information that must be provided to an assured tenant as required by Housing Act 2004 (as amended by Localism Act 2011) should be provided directly by the landlord. The landlord cannot "assert that the information could have been obtained by the [tenant] making his own enquiries by means of the internet or telephoning the respondent's agent or the scheme's administrator or in some other way. Section 213(5) of the 2004 Act requires the information to be provided by the landlord.’ and ‘it is doubtful whether the distinction between … mere procedural provisions and other provisions is justified in a case where the legislation has prescribed all the different categories of information which are required to be provided in order to comply with the statutory obligation …".

Berrisford v Mexfield Housing Co-operative Ltd [2011] 46 EG 105, [2011] 3 WLR 1091 (HL)

term

(uncertain)
A tenancy granted for an uncertain term is void. If rent has been paid and received a periodic tenancy comes into effect, based on the period for which the rent is paid and accepted, terminable by notice to quit given by either party (Prudential Assurance Co Ltd v London Residuary Body).
However, if the tenancy is granted to an individual, based on establihed common law principles (Litt Ten 382; 1 Co Litt 42a; Shep Touch 275), it will be converted to a lease for a term of 90 years, terminable on the death of the tenant. After the death of the tenant the lease may be terminated by either party giving one month's notice on a quarter day that is appropriate to the tenancy, or if there is no quarter day applicable to the tenancy, one of the usual quarter days (Law of Property Act 1925, s. (146(9). But, if the lease is granted to a corporate entity the original rule of Prudential Assurance Co Ltd v London Residuary Body, supra would apply creating a periodic tenancy.

Peel Land and Property (Ports No 3) Ltd v TS Sheerness Steel Ltd [2013] EWHC 1658, [2013] PLSCS 139

trade fixture

Items such as equipment in a steel rolling mill (including cranes, tracks, furnaces, mills regulators and transformers, cooling towers and dust extractors, but not a brick-built furnace), considered trade fixtures and removable at end of lease, even though removal of some of the items could take 12-18 months, provided there is no provision in the lease to the contrary. Damage caused by removal had to be repairable; the effect on what remained may not be material; and the value or usefulness of an item after removal is not necessarily material.

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2010] 31 EG 63 (SC)

trespass

Drilling under land even at a depth of 2,800 ft is a trespass, but that there may be a point at which pressure and temperature would render the concept of ownership below the land an "absurdity".

Enfield London Borough Council v Outdoor Plus Ltd [2012] EWCA Civ 608, [2012] 29 EG 86 (CA)

trespass

Even though trespass is minor and provides no financial benefit, damages are still payable and should be assessed as the likely fee that would have been negotiated if permission had been sought in the first place for an incursion over adjoining land. (Stadium Capital Holdings v St Marylebone Property considered.)

First Plus Financial Group plc v Hewett [2010] 23 EG 108, [2010] All ER 248 (CA)

undue influence

A wife reluctantly agreed to mortgage family home to pay off her husband's debts and his deliberate concealment of the fact that he was having an affair at that time was sufficient to justify setting aside the transaction. A party to a mortgage transacation should be "properly and fairly appraised of the relevant circumstances".

Roadside Group Ltd v Zara Commercial Ltd [2010] EWHC 1950 (Ch), [2010] 33 EG 70

use clause

A use clause is better in the passive voice, such as "the premises shall not be used for …", rather than an active voice, such as "not to use the premises for …", if the intention is that the tenant and any other user (e.g. a sub-tenant or licensee) of the premises is to abide by the covenant. The active voice may imply that it is only the tenant who is bound by the restriction, especially if the covenant is in a different form to others in the lease (Tophams Ltd v Earl of Sefton [1967] 1 AC 50, [1966] 1 All ER 1039 (HL); Roadside Group Ltd v Zara Commercial Ltd [2010] EWHC 1950 (Ch), [2010] 33 EG 70). Alternatively, the clause can be more emphatic, such as "not to use or permit any other party to use the premises …".

NYK Logistics (UK) Ltd v Ibrend Estates BV [2011] EWCA Civ 683, [2011] 25 EG 104 (CA)

vacant possession

Vacant possession not given at time of break in lease when tenant permitted builders to carry out work to the premises to meet the requirements of a schedule of dilapidations, even though he could have asked them to leave and returned the keys to the landlord.

Clarence House Ltd v National Westminster Bank plc [2010] 08 EG 106, 1 WLR 1216 (CA)

virtual assignment

A transfer of the economic benefits, with no parting with, or sharing of, possession constituted a virtual assignment, especially when the premises were sublet and only the head lease was 'assigned'. The assignee was only agent for the collection of rent and the head lessor remained responsible for the approval of any new sublease. Thus, there was no breach of the condition against parting with or sharing possession of the leased premises.

Oceanbulk Shipping & Trading SA v TMT Asia Limited [2011] 1 AC 662, ??, [2010] 4 All ER 1011, ?? (SC)

without prejudice

Evidence of facts may be admitted to assist with the interpretation of an agreement, even though such information is imparted by one of the parties to the other during 'without prejudice' negotiations.

North Eastern Properties Ltd v Coleman [2010] 12 EG 97 (CA)

writing

Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which applies to the expressly agreed terms for the sale of land, does not apply to a term that is part of some simultaneous contract, such as the sale of chattels or the payment of an agent's commission

Terms in bold are defined and explained in detail in Real Estate Defined (Subscribe to Real Estate Terms).

(suffixes such as (US) (Eng) (F) indicate the country of primary, but not necessarily exclusive, use).


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