[1996]
The claimant purchased land which includedarightofwayoveranaccess road. He claimed to be impliedly entitledtousealay-by,asitwouldbe dangerous to use the access road alone. An easement over the lay-by was held to be necessary for reasonable enjoyment of the land.
An example of where an easement is sufficiently necessary to be impliedly acquired under the rule in Wheeldon vBurrows*.
COMPARE with Manjang v Drammeh*, Pryce v McGuinness and WheelervSaunders
[1969]
A new owner of a bungalow had a cooker installed. A workman found a hidden box of money. The previous ownerofthebungalowhadforgotten about it and left it behind.
"One does not abandon property merely because one has forgotten where one put it." Abandonment requires a positive act. The true owner has a better title to the forgotten property than any later finder.
[2021]
A rent review clause had been linked to the Retail Price Index since the start of the lease, when it had clearly been intended to link only to the previous year. The tenant calculated thatunderthistherentovera25-year lease would increase from £15k to over £76M! The tenant asked the court to correct the term.
Courts will not correct unambiguous contract terms because they are unduly favourable to one party, but where it is clear from construction that a mistake has been made in the literal interpretation, the court can step in. The Court of Appeal said that this literal interpretation produced results which were “arbitrary, irrational, commercially nonsense or absurd”. It corrected the drafting error.
A case disputing whether hanging a sign advertising a pub on a nearby property was capable of being an easement.
A right of signage is a right traditionally recognised as an easement. The sign had been in place for 40 years. There didnothave to be a physical connection between the dominant and servient tenement. An easement existed.
Thiswasamajordisputeoverafamily farm where a son, who had always worked on the farm for low pay and who had never looked for any other work claimed his expectation that he would inherit from hisfather.
The son was entitled to equitable relief. The court will take account of the workability of the situation when decidingwhether togiveeffectto the claimant's expectation or compensate for the loss of it.
Moorgate Mercantile v Twitchings* [1976]
A car dealer checked with a fraud protection scheme and was told that thecarwasnotregisteredwithit.The car had been sold fraudulently while subject to a hire purchase agreement andtheownerlatersoughttorecover the cost. The dealer tried to argue estoppel on the basis of the negative report from the protectionscheme.
Lord Denning described estoppel as “a principle of justice and equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when itwould beunjust orinequitable for him to do so.”
Morris V Brookmans Park Roads Ltd [2021]
This was an application to lift a covenantunder s.84(1)(aa) LPA 1925. The covenant prevented a landlord from letting out flats in a completed development (for which planning permission had been obtained).
The covenant was upheld because it upheld the current character of the estatewhichwasasubstantialbenefit to the individual houses within it.
[1872]
Thefirsttenantofapropertyassigned the lease to the second tenant, who assigneditontothethirdtenant,who breached the repair covenant. The first tenant sought to recover their losses when they were sued for the breach of covenant.
Where the first tenant has been sued under a repair covenant for a later tenant’s breach, that first tenant can recoverfromthecurrenttenant,even where there was no privity, because the first tenant has discharged the current tenant’s obligation to the landlord.
The interest rate of a mortgage was pegged to the Swiss Franc. The rate went upand theborrowerattempted toclaimtheratewasunconscionable.
Example of a high interest rate that was upheld. The borrowers were experienced businessmen and had taken advice before going into the mortgage.
COMPARE
Finance v Gough, Multiservice BookbindingvMarden* and Paragon FinancevNash
National &
A borrower fell into arrears on his mortgage payments, and the lender sought possession. The borrower asked for a stay to enable him to sell the property. He demonstrated that over a period he would be able to repay everything.
The claimant owned an ironmongery business; he sold part of his land along with a covenant to prevent the purchaser from competing with his business by opening his own ironmongery business.
In order to for the court to order possession to be postponed, the borrower needs a financial plan to show how they intend to make payments. Where a plan exists, it is not essential that it allows for immediate repayment.
Protecting a business may be a restriction that touches and concerns the land, as long as it benefits the land, not just the person.
A husband and wife split up and mutuallyagreedtoselltheirproperty, which they held as joint tenants. The wife signed a memorandum allowing the husband to sell the house. They did not agree on a price, and the husband died.
The conduct in question, namely inconclusive negotiation, was insufficienttoseverthejointtenancy. This first instance decision was criticised as being wrong in the Court of Appeal in Burgess v Rawnsley* below.
COMPARE with Gore and Snell v Carpenter and BurgessvRawnsley*
A tenant applied for landlord’s consenttosublet. Thelandlordasked for a bank reference for the prospective assignee, a surveyor’s inspection costing £350 plus VAT and an undertaking to cover landlord’s fees in the sum of £1,250. The tenant claimed this amounted to unreasonable refusalof consent.
A mortgage, with funds provided by a brewery to a pub owner, contained a tie preventing the pub owner from selling any beer from other breweries. The tie extended beyond the durationof the mortgage.
The claimant was given exclusive possession of a bungalow near his workplace by his employer, who wantedhimtoworkasacoachdriver. Rent was deducted from his wages. However, he failed to obtain the necessary driving licence and was dismissed. The employer argued successfully that he did not have a lease of the cottage but a service occupancy.
A defective ceiling in a leased flat collapsed, injuring the claimant. The claimant argued this was a breach of the landlord's implied repair covenant.
Where there are several reasons for refusal of consent, the court will look to see if the reasons are generally good or bad and will decide on balance whether the refusal was reasonable. Here the first two conditions were reasonable and the third unreasonable. The balance here was that the landlord’s refusal was reasonable.
A collateral advantage is likely to be struck out where it extends beyond the mortgage term.
COMPARE with
An employee who has exclusive possession and pays rent does not necessarily have a lease where the employee is required to occupy the property for performance of his duties. The court did not grant a tenancy, it was immaterial that the claimanthadmovedintotheproperty before startingwork.
Alandlorddoesnothaveliabilityfora latent defect (like a weak ceiling). If the defect is within the demised premises, the obligation to repair begins when the landlord is made aware of the defect.
An easement, granting a vehicular right of way, had been confirmed by an adjudicator on the basis of prescription through regular use over almost 30 years. It was upheld on appeal by the claimant.
The landlord of a lock-up shop covenanted that he would not interferewiththetenant'senjoyment oftheproperty:thelessee“shall and may peaceably and quietly hold and enjoy said premises”.Scaffoldingwas later erected which partially blocked access to the property.
The defendant guaranteed that a lessee would perform the covenants in the lease. The original landlord (a company) was wound up and transferredtheleaseholdreversionto the claimant. The benefit of the covenant was not expressly transferred. When the tenant failed to pay rent, the claimant sought to enforce the guarantee and make the defendant pay for the tenant’s breach.
The claimant sought possession after the defendant fell into arrears. The defendant argued that the Bank of England had lowered the base rate, and this had not been passed on, makingthe rate exorbitant. The court found that it was reasonable for the lender to exercise its discretion in altering its variable rate.
The court enforced a covenant to maintain boilers in an apartment block (which was largely inhabited by the elderly and young families) through a mandatory injunction after maintenance staff went on strike.
Example of the judicial construct of “lost modern grant”: it is presumed that,ifaneasementhasbeenenjoyed for at least 20 years, the easement has its origins in a deed made after 1189, but that the deed has simply been lost.
There can be breach of a such a covenant without physical entry onto the demised premises, but the interferencemustbesubstantial.This was a breach of the landlord’s covenant to allow the tenant quiet enjoyment of the property.
Established the definition of “touch andconcern”asaffecting“the nature, quality, mode of use or value of the covenantee’s land”. Here, the claimant was able to enforce the guarantee, asthebenefitpassed with the conveyance as it touched and concerned the land.
A mandatory injunction to prevent thebreachofanegativecovenantcan be awarded in the correct circumstances. The court expressed great reluctance about making the award but noted that the lack of heating was having a deleterious effect on the health of some tenants.
The defendant had lived with the claimant for a long time and had assuredherthattheirhomewouldbe hers. The claimant relied on this and spent money redecorating and renovating. When he sought to sell the property, she argued estoppel.
The case concerned the point at which a power of sale arises on an interpretation of s.101 LPA
A testator gave his residual estate to hischildrenandchildren’schildrenin equal share.
The claimant and defendant bought a house together as joint tenants. The claimant argued at court that the defendant hadnot contributed to the purchase price, so they ought to be considered tenants in common.
A proprietary estoppel had been made out. The court considered whether to grant anequitable licence for lifeto the claimantor to order the transfertoherofthefeesimpleofthe property. It ordered the transfer of the property.
The power of sale arises as soon as the first capital instalment is due. On an instalment mortgage that is when the first instalment is due.
Wordsofseveranceinthegrant,such as “in equal share”, indicate a tenancy-in-common.
An express declaration as to whether apropertyisheldasajointtenancyor a tenancy in common prevails over any presumptions.
The claimant bought a hotel from the defendant. The defendant retained a small island in the nearby river which he used for fishing. The claimant sought to show he had taken an easement over the mooring and fishing rights in respect of the retained land andthat s. 62 LPA 1925 operated to convey those rights. The court agreed that he had gained the easements.
1) The right to use mooring was capable of being an easement.
2) The rights were continuous and apparent and so subject to s. 62 LPA 1925. Suggested that prior diversity of ownership is not required for the operation of s. 62
CONFIRMED by Wood v
COMPARE with
v
The defendant purchased part of an estateandcovenantednottobuildon the land without permission, he leased the land and the lessee built. The lessee went into liquidation and the land reverted to the defendant.
The defendant was not liable for the breach of covenant which was effectively by his predecessor in title.
A covenant that is mostly negative, with a positive condition, can be treated as wholly negative (and vice versa).