A new owner of a bungalow had a cooker installed. A workman found a hidden box of money. The previous owner of the bungalow had forgotten about itandleft it behind.
The claimant claimed a right of way over neighbouring land in order to allow him access to an otherwise hard to reach area at the foot of an escarpmentinScotland.
Therightalsopermittedparking,which the defendant argued could not be an easement, as it would amount to exclusive possession of the servient tenement.
"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.
Where the servient owner is not deprived of possession or control there will not be exclusive possession. Here, although the servientownercouldnotparkonthe land, they could still access the land and use it for other means. There couldbe aneasementforparking.
COMPARE with BatchelorvMarlow, Hair v Gillman and Kettel v Bloomfold
Arentreviewclausehadbeenlinkedto the RetailPrice Index since the start of the lease, when it had clearly been intended to link only to the previous year. The tenant calculated that under theclauseasdraftedtherentovera25 yearleasewouldincreasefrom£15kto over£76M!Thetenantaskedthecourt to correcttheterm.
Courts willnot correct unambiguous contract terms because they are unduly favourable to one party, but where it is clear from construction thata mistake hasbeenmade inthe literal interpretation, the court can stepin.TheCourtofAppealsaidthat 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 did not have to be a physical connection between the dominant and servient tenement.Aneasementexisted.
The first tenant of a property assigned the lease to the second tenant, who assigned it on to the third tenant, who breachedtherepaircovenant.Thefirst tenant sought to recover their losses whentheyweresuedforthebreachof covenant.
Where the first tenant has been sued under a repair covenant for a later tenant’s breach, that first tenant can recover from the current tenant, even where there was no privity, because the first tenant has discharged the current tenant’s obligationtothe landlord.
[1978]
The interest rate of a mortgage was pegged to the Swiss Franc. The rate went up and the borrower attempted to claimthe ratewas unconscionable.
Example of a high interest rate that was upheld. The borrowers were experienced businessmen and had taken advice before going into the mortgage.
COMPARE with Cityland v Dabrah, Falco Finance v Gough, Multiservice Bookbinding v Marden and Paragon Finance v Nash
[1996]
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 repayeverything.
The claimant owned an ironmongery business; he sold partof 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 immediaterepayment.
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 mutually agreed to sell their property, which they held as joint tenants. The wife signed a memorandum allowing thehusbandtosellthehouse.Theydid not agree on a price, and the husband died.
The conduct in question, namely inconclusive negotiation, was insufficient to sever the joint tenancy. This first instance decision was criticised as being wrong in the CourtofAppealin Burgess below.
Atenantappliedforlandlord’sconsent to sublet. The landlord asked 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 thisamountedtounreasonablerefusal ofconsent.
Where there are several reasons for refusalofconsent,thecourtwilllook 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 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 duration ofthemortgage.
The claimant was given exclusive possession of a bungalow near his workplace by his employer, who wanted him to work as a coach driver. 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 collateral advantage is likely to be struck out where it extends beyond themortgage term.
The parties entered into 11 contracts for the sale of flats in a development. There was a side agreement for the paymentbythevendorofa2%finders’ fee to the purchaser on completion. The purchaser failed to complete and thevendorservednoticeto complete.
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 claimant had moved into the property beforestartingwork.
The finders’ fee was not included in the contract and the purchaser sought to avoid the contract on the basis that it fell foul of s. 2 Law of Property (Miscellaneous Provisions) Act 1989 as not all terms were included in the written agreement. The court held that the finders fee was not part of the contract and orderedspecificperformance.
A defective ceiling in a leased flat collapsed, injuring the claimant. The claimant argued this was a breach of thelandlord'simpliedrepair covenant.
A landlord does not have liability for a latent defect (like a weak ceiling). If the defect is within the demised premises, the obligation to repair begins when the landlord is made awareofthedefect.
Aneasement,grantingavehicularright of way, had been confirmed by an adjudicatoronthebasisofprescription through regular use over almost 30 years. It was upheld on appeal by the claimant.
Example of the judicial construct of “lost modern grant”: it is presumed that, if an easement has been enjoyed for at least 20 years, the easement has its origins in a deed made after 1189, but that the deed hassimply beenlost.
The landlord of a lock-up shop covenanted that he would not interfere with the tenant's enjoyment of the property: the lessee “shall and may peaceably and quietly hold and enjoy said premises”. Scaffolding was later erected which partially blocked accesstotheproperty.
Ms Oxley and Mr Hiscock were in an unmarried relationship. They purchased a house together, which was placed in the sole name of the defendant. There was no express mention about shares of the property. The claimant contributed 28% of the property payment and the defendant 48%. Both contributed to the upkeep of the house and maintenance, as well aspayingthemortgage.
The defendant guaranteed that a lesseewouldperformthecovenants in the lease. The original landlord (a company) was wound up and transferred the leasehold reversion to 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, making the rate exorbitant. The court found that it was reasonable for the lender to exercise its discretion in alteringitsvariablerate.
There can be breach of a such a covenant without physical entry onto the demised premises, but the interference must be substantial. This was a breach of the landlord’s covenant to allow the tenant quiet enjoymentoftheproperty.
The beneficial interest under a constructivetrusttakesintoaccount thewholecourseofdealingbetween the parties, not just initial contributions to the purchase price. MsOxleywasentitledtoa40%share andMrHiscockto a60% share.
Established the definition of “touch and concern” as affecting “the nature,quality,modeofuseorvalue of the covenantee’s land”. Here, the claimant was able to enforce the guarantee, as the benefit passed with the conveyance as it touched andconcernedtheland.
Bookbinding v Marden and
Finance v Nash
An airline passenger found a valuable bracelet in an airport lounge. British Airways claimed ownership of it. The court held that British Airways had not exhibited an intention to control the area, so did not have a claim to ownership of lost property found there.
Where the landowner has shown an intention to control the land and thingsfoundonit,theymayownany items found on it. If not, those finding items will normally have a stronger claim to them than will the ownerofthe land.
The court enforced a covenant to maintain boilers in anapartment block (which was largely inhabited by the elderly and young families) through a mandatory injunction after maintenance staffwentonstrike.
A mandatory injunction to prevent the breach of a negative covenant can be awarded in some circumstances. The court expressed great reluctance about making the award but noted that the lack of heating was having a deleterious effectonthehealthofsometenants.
The case concerned the point at which a power of sale arises on an interpretationof s.101 LPA
A testator gave his residual estate to his children and children’s children in equalshare.
The power of sale arises as soon as thefirstcapitalinstalmentisdue.On aninstalmentmortgagethatiswhen thefirstinstalmentisdue.
Words of severance in the grant, such as “in equal share”, indicate a tenancy-in-common.
Thiscaseconcernedacontestedaccess betweenaterraceofproperties.
The Court of Appeal found that before an inference of common intention could be found the claimants hadto show thatthe facts were “not reasonably consistent with any other explanation”. An easement would be found only if there was no other possible interpretationofthe facts.
The claimant claimed the right to the neighbour’swalltoprotecttheirhouse from the weather. If this were recognised as a negative easement it would prevent the defendant from demolishingtheirownhouse.
Novel negative easements are unlikely to be recognised by a court, astheycouldpreventsomeonefrom enjoying their land to the full and carry out legitimate development. Therewas no easementhere.