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KEY FACTS KEY CASES
Land Law
KEY FACTS KEY CASES
The Key Facts Key Cases revision series is designed to give you a clear
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KEY FACTS KEY CASES
Land Law
Judith Bray
|!
|! Routledge
|! Taylor & Francis Group
|!
LONDON AND NEW YORK
First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Judith Bray
The right of Judith Bray to be identified as author of this work has been asserted by her in
accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form
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and are used only for identification and explanation without intent to infringe.
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ISBN: 978–0–415–83333–2 (pbk)

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Contents
PREFACE ix
TABLE OF CASES xi
Chapter 1
LAND 1
1.1 The significance of land 2
1.2 The definition of land 2
1.3 Real and personal property 3
1.4 Legal and equitable rights 4
1.5 The doctrine of notice and the 1925 legislation 5
1.6 The doctrine of estates 6
1.7 Estates in land after 1925 7
1.8 Fixtures 8
1.9 Items found in and on the land 9
1.10 Treasure 10
Key Cases Checklist 10
Chapter 2
TRANSFER AND CREATION OF RIGHTS IN LAND 23
2.1 Acquisition of legal rights in land depends on proving that
title to the land has passed to the purchaser 24
2.2 Pre-contractual enquiries 24
2.3 The exchange of contracts 25
2.4 Exceptions to the requirements of s 2 LP(MP)A 1989 25
2.5 Completion and registration 26
Chapter 3
THE 1925 LEGISLATION AND THE TRANSFER
OF RIGHTS IN UNREGISTERED LAND 31
3.1 Background to the 1925 legislation 32
3.2 Principles of unregistered conveyancing 32
vi Contents
3.3 Equitable rights in unregistered land 33

3.4 System of registration 33
3.5 Move towards registration of all titles 35

3.6 Overreaching 35
Chapter 4
REGISTRATION OF TITLE 39
4.1 Features of registration of title 40
4.2 The Land Registry 40
4.3 Classification of interests in registered land 41
4.4 Definition of minor interests (called ‘burdens’ on the
register under LRA 2002) 42
4.5 Interests that override the register 45
4.6 Rights abolished under LRA 2002 49
4.7 Alteration and indemnity 49
4.8 Summary of changes to land registration under the 2002 Act 51
Chapter 5
INFORMAL CREATION OF RIGHTS IN LAND 58
5.1 Implied trusts 58
5.2 Resulting trusts 60
5.3 Constructive trusts 61
Chapter 6
PROPRIETARY ESTOPPEL 79
6.1 Definition of proprietary estoppel 79
6.2 The representation 80
6.3 Reliance 81
6.4 Detriment 82
6.5 Nature of the rights arising under proprietary estoppel 82
6.6 Remedies in estoppel 83
Chapter 7
LICENCES IN LAND 93
7.1 The nature of a licence 93
7.2 Bare licences 94
7.3 Licences coupled with a grant 94
7.4 Contractual licences 94
Contents vii
7.5 Estoppel licences 95

Chapter 8
CO-OWNERSHIP 103
8.1 Types of co-ownership 103
8.2 The joint tenancy 104
8.3 The tenancy in common 105
8.4 Methods of severance of the equitable estate 106
Chapter 9
CO-OWNERSHIP OF LAND AFTER 1996:
TRUSTS OF LAND 117
9.1 Characteristics of a trust of land 118
9.2 Changes made under the TOLATA 1996 118
9.3 Powers of the trustees of land 118
9.4 Rights of the beneficiaries under a trust of land 119
9.5 Overreaching under a trust of land 120
9.6 The effects of overreaching 120
9.7 Applications to the court under TOLATA 1996 121
9.8 Applications for sale by a trustee in bankruptcy 122
Chapter 10
EASEMENTS 133
10.1 Key characteristics of an easement 134
10.2 Other features of easements 135
10.3 The grant of an easement 136
10.4 Legal and equitable easements 141
10.5 The transfer of easements 142
10.6 The extinguishment of easements 144
10.7 Profits à prendre 144
Chapter 11
COVENANTS 157
11.1 The nature of covenants 158
11.2 Covenants at law 158
11.3 Covenants in equity 161
11.4 The passing of the burden in equity 164
11.5 Discharge and modification of restrictive covenants 165
viii Contents
11.6 Remedies for breach of a restrictive covenant 165

11.7 The reform of covenants 166
11.8 Commonhold 167

Chapter 12
MORTGAGES 178
12.1 Definition of mortgages 178
12.2 The development of mortgages at common law and in equity 179
12.3 The creation of mortgages 179
12.4 Protection for the borrower/mortgagor 181
12.5 Undue influence in a mortgage transaction 184
12.6 Rights of the mortgagee 186
12.7 Priority of mortgages 188
Chapter 13
LEASES 202
13.1 The characteristics of a lease 203
13.2 The distinction between a lease and a licence 205
13.3 The creation of a lease 207
13.4 Termination of leases and licences 208
13.5 The regulation of leases 210
13.6 The enforcement of covenants 213
Chapter 14
ADVERSE POSSESSION 224
14.1 The meaning of adverse possession 225
14.2 Factual possession 225
14.3 The intention to possess 226
14.4 The nature of the rights in adverse possession 227
14.5 Recovery of possession by the paper title owner 227
14.6 Adverse possession of unregistered land 228
14.7 Main changes in the rules on adverse possession
introduced by the LRA 2002 228
14.8 Adverse possession in leasehold land 230
14.9 Adverse possession and human rights 230
INDEX 239
Preface
The Key Facts Key Cases series is a practical and complete revision aid that
can be used by students of law courses at all levels from A Level to degree
and beyond, and in professional and vocational courses too.
The Key Facts Key Cases series is designed to give a clear view of each
subject. This will be useful to students when tackling new topics and is inval-
uable as a revision aid.
Most chapters open with an outline in diagram form of the points covered in
that chapter. The points are then developed in a structured list form to make
learning easier. Supporting cases are given throughout by name and, for
some complex areas, facts are given to reinforce the point being made.
The Key Facts Key Cases series aims to accommodate the syllabus content of
most qualifications in a subject area, using many visual learning aids.
Each title in the Key Facts Key Cases series now incorporates a Key Cases
section at the end of each chapter, which is designed to give a clear under-
standing of important cases. This is useful when studying a new topic and
invaluable as a revision aid. Each case is broken down into fact and law. In
addition, many cases are extended by the use of important extracts from the
judgment or by comment or by highlighting problems. Cases marked in bold
in the Key Facts section signify that they have then been included with
further detail in the Key Cases Checklist at the end of the chapter.
In some instances, students are reminded that there is a link to other cases or
material. If the link case is in another part of the book, the reference will be
clearly shown. Links will be to additional cases or materials that do not
feature in the book.
To give a clear layout, symbols have been used at the start of each compo-
nent of the case. The symbols are:
Key Facts – These are the basic facts of the case.
Key Law – This is the major principle of law in the case.

x Preface
Key Judgment – This is an actual extract from a judgment made on

the case.
Key Comment – Influential or appropriate comments made on the

case.
Key Problem – Apparent inconsistencies or difficulties in the

law.
Key Link – This indicates other cases which should be considered

with this case.
The Key Link symbol alerts readers to links within the book and also to cases
and other material, especially statutory provisions, which are not included.
The court abbreviations used in the key case sections of this book are shown
below.
Ass Assize Court CA Court of Appeal
CC County Court CCA Court of Criminal Appeal
CCR Crown Cases Reserved CH Court of Chancery
ChDiv Chancery Division CJEU Court of Justice of the

European Union
C-MAC Court Martial Appeal Court CP Court of Probate
DC Divisional Court EAT Employment Appeal Tribunal
ECHR European Court of Human ECJ European Court of Justice

Rights
ET/IT Employment tribunal/ Exch Court of the Exchequer

Industrial tribunal
HC High Court HL House of Lords
KBD King’s Bench Division NIRC National Industrial Relations

Court
PC Privy Council QBD Queen’s Bench Division
RC Rolls Court SC Supreme Court
The law is as I believe it to be on 1 August 2013

Table of Cases
88 Berkeley Road, NW9, Re, Rickwood v Turnsek [1971]

Ch 648, [1971] 1 All ER 254, Ch D ....................................107, 109, 113
A-G Securities v Vaughan [1990] 1 AC 417.............................204, 216, 223

Abbey National Building Society v Cann [1991] 1 AC 56 .............48, 49, 56
Abbott v Abbott [2007] UKPC 53, [2008] 1 FLR 1451, PC ................61, 69
Aldred’s Case (1610) 9 Co Rep 57b ..........................................................134
Alliance & Leicester plc v Slayford [2001] 1 All ER
(Comm) 1 .........................................................................187, 190, 197–8
Antoniades v Villiers [1990] 1 AC 417 .....................................204, 216, 222
Armory v Delamirie (1722) 1 Strange
505 (93 ER 664) .................................................................................9, 13
Ashburn Anstalt v Arnold [1989] Ch 1 ..........47, 95, 96, 102, 205, 216, 220
Aslan v Murphy [1990] 1 AC 417.............................................203, 216, 221
Austerberry v Corporation of Oldham (1885)
29 Ch D 750 .............................................................157, 160, 168–9, 172
BP Properties v Buckler (1987) 55 P & CR 337 ...................225, 232, 235–6

Bailey v Stephens (1862) 12 CB (NS) 91 ..................................................134
Ballard’s Conveyance, Re [1937] Ch 437 ..................................................162
Bank of Ireland Home Mortgages v Bell [2001]
2 All ER 920 .........................................................................121, 123, 126
Barca v Mears [2005] 2 FLR 1.......................................................122–3, 130
Barclays Bank v O’Brien [1994] 1 AC 180 ...........................184–5, 190, 196
Barclays Bank v Zaroovabli [1997] Ch 321 ...............................................184
Barry v Haseldine [1952] Ch 832 ..........................................................154–5
Basham, Re [1986] 1 WLR 1498 ...........................................81, 83–4, 89, 90
Batchelor v Marlow [2001] EWCA Civ 1051 ...................................135, 149
Baxter v Four Oaks Properties Ltd [1965]
1 Ch 816 .......................................................................................164, 176
Baxter v Mannion [2011] 2 All ER 574 ......................................................50
Bedson v Bedson [1965] 2 QB 666 ...................................................121, 125
Berkley v Poulett (1976) 120 SJ 836, (1977)
241 EG 911, CA .............................................................................8, 9, 19
xii Table of Cases
Berrisford v Mexfield Housing Co-operative [2011]

UKSC 53 ................................................................................204, 219–20
Biggs v Hoddinott [1898] 2 Ch 307 ..............................................181, 190–1

Billson v Residential Apartments Ltd [1992]
1 AC 494 ..............................................................................................216
Binions v Evans [1972] Ch 359 .................................................44, 95–6, 101
Bradley v Carritt [1903] AC 253 ...............................................181, 190, 192
Bridges v Hawkesworth (1851) 21 LJ QB 75...........................................9, 13
Browne v Flower [1911] 1 Ch 219 ............................................................210
Bruton v London & Quadrant Housing Trust [2000]
1 AC 406 ..............................................................................204–6, 216–7
Buchanan-Wollaston’s Conveyance, Re [1939]
Ch 738 ......................................................................................121, 123–5
Buckinghamshire County Council v Moran [1990]
Ch 623 ..........................................................................225, 226, 232, 234
Bull v Bull [1955] 1 QB 234 ..........................................................119, 123–4
Burgess v Rawnsley [1975] Ch 429 ...............................................108–9, 115
Burns v Anthony (1997) 74 P & CR D41 .................................................226
Burns v Burns [1984] Ch 371 ..............................................61, 62, 63, 66, 72
CPS v Piper [2011] EWHC 3570 (Admin) .................................................64

Carringtons Ltd v Smith [1906] 1 KB 79, KBD ........................................182
Central Estates (Belgravia) v Woolgar (No 2) [1972]
1 WLR 1048 .........................................................................................216
Chelsea Yacht & Boat Co Ltd v Pope [2001]
2 All ER 409 .......................................................................................9, 20
Cheltenham and Gloucester Building Society v Krausz
[1997] 1 All ER 21 .......................................................................188, 200
Cheltenham and Gloucester Building Society v Norgan
[1996] 1 WLR 343, CA ...............................................186, 191, 199–200
Chhokar v Chhokar [1984] FLR 313 ................................................48, 56–7
Citro (a bankrupt), Re [1991] Ch 142 .................................122, 123, 129–30
City of London Building Society v Flegg [1988]
AC 54 ...........................................................................47, 54, 120, 131–2
Cityland and Property (Holding) Ltd v Dabrah
[1968] Ch 166 ......................................................................182, 190, 195
Cobbe v Yeoman’s Row Management [2008]
UKHL 55, [2008] 1 WLR 1752 .....................................26, 29–30, 81, 84
Colchester BC v Smith [1992] 2 WLR 722 ..............................................225
Cooke v Head [1972] 2 All ER 38, [1972]
1 WLR 518 .............................................................................................65
Coombes v Smith [1986] 1 WLR 808 .............................................81, 84, 90
Copeland v Greenhalf [1952] Ch 488 ...............................135, 145, 148, 149
Table of Cases xiii
Cowcher v Cowcher [1972] 1 All ER 943, [1972]

1 WLR 425 .............................................................................................60
Crabb v Arun District Council [1976]

Ch 179 ....................................................................81, 83–4, 86, 136, 229
Crest Nicholson Residential (South) Ltd v
McAllister [2003] 1 All ER 46, [2004]
1 WLR 2409 .............................................................................162, 173–4
Crow v Wood [1971] 1 QB 77 ...................................................135, 145, 151
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971]
Ch 949 ..................................................................................187, 191, 201
Curley v Parkes [2004] EWCA Civ 1515, [2004]
All ER (D) 344 (Oct).............................................................................61
Davis v Smith [2011] EWCA Civ 1603 ........................................108–9, 116

Dearle v Hall: Loveridge v Cooper (1823) 3 Russ
1, [1824–34] All ER Rep 28.............................................................188–9
Dennis v Macdonald [1982] Fam 63 .........................................121, 123, 128
D’Eyncourt v Gregory (1866) LR 3 Eq 382 .............................................8, 18
Dodsworth v Dodsworth (1973) 228 EG 1115..................................83–4, 91
Dolphin’s Conveyance, Re [1970] Ch 654 ........................................164, 176
Drake v Whipp [1996] 1 FLR 826, (1995) Times,
19 December ..............................................................................63, 66, 75
Draper’s Conveyance, Re, Nihan v Porter [1969]
1 Ch 486, [1967] 3 All ER 853 ............................................107, 109, 111
Dresden Estates v Collinson (1987) 55 P & CR 47,
[1987] 1 EGLR 45, CA ........................................................................205
Dyce v Lady James Hay (1852) 1 Macq 305 .........................................134–5
Dyer v Dyer (1788) 2 Cox Eq Cas 92 ................................................60, 66–7
ER Ives Investment Ltd v High [1967]

2 QB 379 ....................................................................33, 37, 84, 144, 172
Edwards v Lloyds TSB Bank plc [2004] EWHC
1745 (Ch), [2005] 1 FCR 139 .............................................................122
Elitestone v Morris [1997] 2 All ER 513 ...........................................9, 19–20
Ellenborough Park, Re [1956] Ch 131 ..........................................133–4, 136,
138–9, 145, 146–7
Elliston v Reacher [1908] 2 Ch 374 ..................................164, 168, 175, 176
Elwes v Brigg Gas Company (1886) 33 Ch D 562...............................2, 9, 16
Errington v Errington & Woods [1952] 1 KB 290 ..........................95–6, 100
Evers Trust, Re [1980] 1 WLR 1327 ..................................................121, 126
Eves v Eves [1975] 1 WLR 1338 .............................................62, 66, 70, 127
Facchini v Bryson [1952] TLR 1386 .........................................................203

xiv Table of Cases
Fairclough v Swan Brewery Co [1912] AC 565 ........................182, 190, 193

Federated Homes Ltd v Mill Lodge Properties Ltd
[1980] 1 WLR 594 .......................................................162, 168, 174, 176

Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355, [1999]
1 All ER 977, CA ...................................................................................48
First National Bank v Syed [1991] 2 All ER 250 ..............................186, 200
First National Securities Ltd v Hegerty [1985]
QB 850 .................................................................................107, 109, 115
First Post Homes Ltd v Johnson [1995] 1 WLR 1567 ...........................25, 27
Four-Maids Ltd v Dudley Marshall (Properties) Ltd
[1957] Ch 317 ..............................................................................186, 198
Gafford v Graham (1998) 95(21) LSG 36 .................................................166

Geary v Rankine [2012] EWCA Civ 555, [2012]
2 FCR 461, CA.......................................................................................64
Gillett v Holt [2001] Ch 210, [1998] 3 All ER 917 ....................81–2, 84, 87
Gillies v Keogh [1989] 2 NZLR 327, NZ CA ..............................................65
Gissing v Gissing [1971] AC 886...........................................61, 63, 66–7, 70
Goldberg v Edwards [1950] Ch 247 ..................................................146, 153
Goodman v Gallant [1986] 1 All ER 311............................103, 106, 109–10
Gore and Snell v Carpenter (1990) 60 P &
CR 456 .............................................................................108–9, 114, 116
Grant v Edwards [1986] Ch 638......................................................62, 66, 71
Greasley v Cooke [1980] 1 WLR 1306..........................81–4, 89, 91, 96, 100
Grigsby v Melville [1974] 1 WLR 80, CA, affirming
[1973] 1 All ER 385, [1972] 1 WLR 1355, Ch D .....................3, 12, 135
Halsall v Brizell [1957] Ch 169 .................................157, 160, 167–8, 171–2

Hammersmith and Fulham LBC v Monk
[1992] 1 AC 478 ..................................................................................204
Hamp v Bygrave (1982) 266 EG 720, [1983]
EGD 1000, QBD ................................................................................8, 18
Harmer v Jumbil (Nigeria), Tin Areas Ltd [1921]
1 Ch 200 ...............................................................................................210
Harris v Goddard [1983] 1 WLR 1203......................................107, 109, 112
Hill v Tupper (1863) 2 H & C 121 ............................................134, 145, 147
Hillman v Rogers [1997] NPC 183, [1998]
SLRYB 159 ...........................................................................................138
Hindcastle Ltd v Barbara Attenborough Associates Ltd
[1997] AC 70, [1996] 1 All ER 737, HL .............................................213
Hodgson v Marks [1971] Ch 892 ..........................................................46, 53
Holland v Hodgson (1872) LR 7 CP 328 ......................................8, 17–8, 20
Holliday (a bankrupt), Re [1981] Ch 405 .....................................122–3, 130
Table of Cases xv
Horsham Properties v Clarke and Beech [2009]

1 WLR 1255, [2008] EWHC 2327 (Ch) .............................................187
Hounslow LBC v Twickenham Garden Development

Ltd [1971] Ch 233 .......................................................................94, 96–7
Hunter v Canary Wharf Ltd [1997] 2 All ER 426 ..............................12, 134
Hurst v Picture Theatres Ltd [1915] 1 KB 1 .....................................94, 96–7
Hussein v Mehlman [1992] 2 EGLR 87 ....................................................209
Hussey v Palmer [1972] 3 All ER 744, [1972]
1 WLR 1286, CA ...................................................................................83
Hypo-Mortgage Services v Robinson [1997]
2 FLR 71 ...........................................................................................48, 56
International Tea Stores v Hobbs [1903]

2 Ch 165 ...............................................................................138, 146, 152
Inwards v Baker [1965] 2 QB 29 .............................80, 83–4, 87, 96, 99–100
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419,

[2002] 3 All ER 865, HL, reversing [2001]
Ch 804, CA, reversing [2000] 3 WLR 242,
Ch D .........................................................................226, 230, 232, 234–5
JA Pye (Oxford) Ltd v United Kingdom
(Application 44302/02) (2007) 46 EHRR
1083, [2008] 1 EGLR 111, Grand Chamber,
ECtHR ..................................................................................231–2, 237–8
JA Pye (Oxford) Ltd v United Kingdom
(Application 44302/02) (2005) 43 EHRR 43,
[2005] 3 EGLR 1, ECtHR ....................................................230–1, 237–8
Jaggard v Sawyer [1995] 1 WLR 269 ........................................166, 168, 177
James v Thomas [2007] EWCA Civ 1212 ..................................................63
Jelbert v Davis [1968] 1 WLR 589 ........................................135, 146, 155–6
Jennings v Rice [2003] 1 P & CR 8 ...............................................83–4, 90–1
Jeune v Queens Cross Properties Ltd [1974]
Ch 97, [1973] 3 All ER 97, Ch D ........................................212, 216, 223
John Trenberth v National Westminster Bank (1979)
39 P & CR 104 ...................................................................................3, 11
Jones v Challenger [1961] 1 QB 176 .................................121, 123, 125, 127
Jones v Kernott [2011] UKSC 53, [2012]
1 AC 776, SC .........................................................................64, 66, 77–8
Jones v Morgan [2002] 1 EGLR 125 .....................................182–3, 190, 193
K (Deceased), Re [1985] Ch 85.....................................................108–9, 116

Kay v London Borough of Lambeth [2006]
2 AC 465 ..............................................................................................204
xvi Table of Cases
Kelsen v Imperial Tobacco [1957] 2 QB 334...........................................2, 10

Kinch v Bullard [1998] 4 All ER 650, [1999]
1 WLR 423, Ch D ........................................................105, 107, 109, 112

King v David Allen & Sons (Billposting) Ltd [1916]
2 AC 54 ......................................................................................95–6, 100
Kingsnorth Finance v Tizard [1986] 1 WLR 783 ....................5, 33, 35, 37–8
Knightsbridge Estates Trust Ltd v Byrne [1939]
Ch 441 ..................................................................................182, 190, 194
Kreglinger v New Patagonia Meat & Cold Storage
Co Ltd [1914] AC 25 ...................................................182–3, 190, 192–3
Lace v Chandler [1944] KB 368 ......................................7, 204, 216, 218–19

Laiqat v Majid [2005] EWHC 1305 (QB) ..............................................2, 12
Lake v Craddock (1732) ............................................................................106
Lambeth LBC v Blackburn (2001) 82 P & CR 39 ....................226, 232, 235
Laskar v Laskar [2008] 1 WLR 2695 ...............................................61, 66, 68
Layton v Martin [1986] 2 FLR 227, [1986]
Fam Law 212, Ch D ...............................................................................63
Lee-Parker v Izzet [1971] 1 WLR 1688 .....................................................212
Leigh v Taylor [1902] AC 157, 71 LJ Ch 272, HL ........................................8
Link Lending v Bustard [2010] EWCA Civ 424,
[2010] 2 P & CR D35, CA ..............................................................48, 57
Liverpool City Council v Irwin [1997] AC 239 ........................................211
Lloyds Bank v Bundy [1975] QB 326 ........................................................195
Lloyds Bank v Rosset [1991] 1 AC 107,
HL reversing [1989] Ch 350 ...............................48, 54–5, 61–3, 66, 72–3
London & Blenheim Estates Ltd v Ladbroke
Retail Parks Ltd [1992] 1 WLR 1278 ..................................135, 145, 149
London County Council v Allen [1914] 3 KB 642 ...................161, 168, 173
Lord Bernstein of Leigh v Skyviews & General Ltd
[1978] QB 479 .............................................................................2, 10–11
Lysaght v Edwards (1876) 2 Ch D 499 ..................................................25, 30
Lyus v Prowsa Developments [1982] 1 WLR 1044 .........................44, 47, 57
M’Dowell v Ulster Bank Ltd (1899) 13 ILT 96,

33 ILT Jo 225 ............................................................................................9
Malayan Credit Ltd v Jack Chia-MPH Ltd [1986]
AC 549 (PC) ........................................................................106, 109, 111
Mancetter Development Ltd v Garmanson Ltd [1986]
QB 1212 .............................................................................................9, 22
Matharu v Matharu (1994) 68 P & CR 93..................................................86
Medforth v Blake [2000] Ch 86, [1999]
3 All ER 97 ...........................................................................187, 191, 201
Table of Cases xvii
Mew v Tristmire [2011] EWCA Civ 912, [2012]

1 WLR 852, CA .......................................................................................9
Midland Bank plc v Cooke [1995] 4 All ER 562 ..................60, 63–4, 66, 74
Midland Bank plc v Green [1891] AC 513 ...........................................32, 36
Millman v Ellis (1996) 71 P & CR 158 .....................................................138
Mills v Silver [1991] Ch 271 .....................................................139, 146, 155
Moffatt v Kazana [1969] 2 QB 152 .........................................................9, 17
Moncrieff v Jamieson and others [2007]
1 WLR 2620 .....................................................................134–5, 145, 150
Moody v Steggles (1879) 12 Ch D 261 .................................134, 145, 147–8
Morrells v Oxford United FC [2001] Ch 459,
[2000] All ER (D) 1038, CA ...............................................................161
Mortgage Corporation v Shaire [2001] Ch 743 ........................122–3, 126–7
Mortgage Service Funding v Palk [1993]
2 All ER 481 .........................................................................................188
Mount Carmel Investments Ltd v Peter Thurlow
Ltd [1988] 1 WLR 1078 ......................................................225, 227, 236
Multiservice Bookbinding Ltd v Marden [1979]
Ch 84 ....................................................................................182, 190, 194
Nash v Paragon Finance [2001] EWCA Civ 1466, [2002]

2 All ER 248, CA .................................................................................182
National Carriers Ltd v Panalpina (Northern) Ltd [1981]
AC 675 .................................................................................................209
National Provincial Bank v Ainsworth [1965] AC 1175 ..............44, 52, 101
National Westminster Bank v Morgan [1985] AC 686 ............................195
Newton Abbot Co-operative Society Ltd v Williamson
and Treadgold Ltd [1952] Ch 286, [1952] 1 All ER
279, Ch D .............................................................................................162
Nicholls v Lan [2007] 1 FLR 744 ..................................................122–3, 131
Nickerson v Barraclough [1981] Ch 426, [1981]
2 All ER 369, CA reversing [1980] Ch 325, [1979]
3 All ER 312, Ch D ..............................................................................137
Norris v Checksfield [1991] 4 All ER 327 .................................................203
Norwich City College of Further and Higher Education v
McQuillin [2009] EWHC 1496 (Ch), [2009] 2 P &
CR 22, [2009] 27 EG 90 ......................................................................161
Oak Co-operative Building Society v Blackburn [1968]

Ch 730 ..............................................................................................32, 36
O’Brien v Robinson [1973] AC 912, [1973] 1 All ER 583, HL................211
Ofulue v Bossert [2009] 2 WLR 749, HL, reversing in part
[2008] 3 WLR 1253, CA .....................................................231–2, 237–8
xviii Table of Cases
Oxley v Hiscock [2004] EWCA Civ 546, [2005]

Fam 211, CA ..............................................................................64, 66, 75
P & A Swift Investments v Combined English Stores

Group [1989] AC 632 ..........................................................158, 168, 170
P & S Platt v Crouch [2003] EWCA Civ 1110,
[2004] 1 P & CR 242 ...........................................................................138
Palk v Mortgage Services Funding plc [1993] Ch 330 ......................191, 198
Paragon Finance plc v Nash [2002]
1 WLR 685 ...................................................................................190, 195
Parker v British Airways Board [1982] QB 1004 ..........................2, 9, 14–15
Pascoe v Turner [1979] 1 WLR 431 ..........................80, 83–4, 88, 90–1, 229
Perera v Vandiyar [1953] 1 WLR 672 .......................................................210
Pettkus v Becker [1980] 2 SCR 834,
117 DLR (3d) 257, Can SC ...................................................................65
Pitt v Asset Management [1994] 1 WLR 327 .......................................24, 27
Powell v Macfarlane (1977) 38 P & CR 452 .............................225–6, 232–3
Priors Case (1368) YB 42 Edw III ......................................................158, 171
Prudential Assurance Co Ltd v London Residuary
Body [1992] 2 AC 386 .........................................................204, 216, 218
Quick v Taff Ely BC [1986] QB 809 ..........................................................211

Quigley v Masterson [2011] EWHC 2529 (Ch), [2012]
1 All ER 1224, Ch D ............................................................................107
Rainbow Estates Ltd v Tokenhold [1999] Ch 64, [1998]

2 All ER 860 .........................................................................212, 216, 223
Ramsden v Dyson (1866) LR 1 HL 129 ............................................80, 84–5
Red House Farms (Thorndon) Ltd v Catchpole
[1977] 2 EGLR 125 ......................................................................226, 232
Rhone v Stephens [1994] 2 AC 310 .................................160–1, 167–8, 171
Roake v Chadha [1984] 1 WLR 40 ...........................................163, 168, 170
Robbins v Jones (1863) 15 CB (NS) 221...................................................211
Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch)......................226
Robson v Hallett 1967] 2 QB 939, [1967] 2 All ER 407, DC ....................94
Rodway v Landy [2001] Ch 703 ................................................119, 123, 127
Rogers v Hosegood [1900] 2 Ch 388 .................................................162, 175
Ropaigealach v Barclays Bank plc [2000] QB 263,
[1999] 3 WLR 17, CA .........................................................................186
Royal Bank of Scotland Ltd v Etridge (No 2) [2002]
2 AC 773, HL, affirming – conjoined appeal [2000]
1 All ER 385, CA, reversing in part – conjoined appeal
[1998] 4 All ER 705, CA .....................................................185, 190, 196
Table of Cases xix
Russel v Russel (1783) 1 Bro CC 269, 28 ER 1121 ...................................181

Sainsbury (J) Plc v Enfield LBC [1989] 1 WLR 590 .................................163

Seddon v Smith (1877) 36 LT 68 ..............................................................225
Smith v Marrable (1843) 11 M & W 5 .....................................................211
Smith and Snipes Hall Farm Ltd v River Douglas
Catchment Board [1949] 2 KB 500, [1949]
2 All ER 179, CA ...................................................................158, 168–70
Somma v Hazelhurst [1978] 1 WLR 1014 ................................206, 216, 220
Sorochan v Sorochan (1986) 29 DLR (4th) 1, [1986]
2 RFL (3d) 225 (Can SC) ......................................................................65
South Staffordshire Water Company v Sharman [1896]
2 QB 44 ..............................................................................................9, 15
Southwark LBC v Mills [1999] 3 WLR 939 ........................................210–11
Sovmots Investments Ltd v Secretary of State for
the Environment [1979] AC 144.........................................................138
Spectrum Investment Co v Holmes [1981] 1 WLR 221 ...........................236
Spencer’s Case (1583) 5 Co Rep 16a.........................................................214
Spiro v Glencrown Properties Ltd [1991] Ch 537.................................25, 28
Springette v Defoe (1992) 65 P & CR 1, [1992]
2 FCR 561, CA.......................................................................................61
Spyer v Phillipson [1931] 2 Ch 183 .........................................................9, 21
St Edmundsbury and Ipswich Diocesan Board of
Finance v Clark (No 2) [1975] 1 All ER 772,
[1975] 1 WLR 468, CA .......................................................................141
St Marylebone Property Co Ltd v Fairweather
[1963] AC 510 .....................................................................230, 232, 236
Stack v Dowden [2007] 2 AC 432 ................64, 66, 69, 76, 78, 106, 109–10
Stafford v Lee (1993) 65 P & CR 172 .......................................137, 146, 154
State Bank of India v Sood [1997]
1 All ER 169 .........................................................................................120
Strand Securities v Caswell [1965]
Ch 373 ..............................................................................................44, 47
Street v Mountford [1985] AC 809.....................203, 205–6, 216–17, 220–1
TSB Bank plc v Botham [1996] EGCS 149 ............................................9, 21

Taylor Fashions Ltd v Liverpool Trustees Co Ltd
[1982] 1 QB 133 ..........................................................................80, 84–5
Taylor v Dickens [1998] 3 FCR 455 ............................................................87
Tecbuild v Chamberlain (1969) 20 P & CR 633 ...........................226, 232–3
Tehidy Minerals Ltd v Norman [1971] 2 QB 528 .....................................140
Thamesmead Town v Allotey (2000) 79 P & CR 557 ......................160, 172
Thomas v Clydesdale Bank [2010] EWHC 2755..................................48, 55
xx Table of Cases
Thomas v Sorrell (1673) Vaughan 330..................................................93, 96

Thorner v Major [2009] UKHL 18 ...........................................80, 84, 88, 91
Tito v Waddell (No 2) [1977] Ch 106.......................................................160

Tinsley v Milligan [1994] 1 AC 340, [1993]
3 All ER 65, HL................................................................................61, 68
Treloar v Nute [1976] 1 WLR 1295 ..........................................................226
Tulk v Moxhay (1848) 2 Ph 744 ........................157, 161, 164, 168, 172, 214
Verrall v Great Yarmouth BC [1981] QB 202 ...................................95–6, 99

Virdi v Chana and another [2008] EWHC 2901 (Ch) .............135, 145, 150
Wakeham v Wood (1982) 43 P & CR 40 ..................................166, 168, 177

Walsingham’s Case (1579) 2 Plowd 547 ........................................................6
Waverley Borough Council v Fletcher [1996] QB 334,
[1995] 4 All ER 756, [1995] 3 WLR 772, CA ..................................9, 16
Wayling v Jones (1993) 69 P & CR 170, [1996]
2 FCR 41, [1995] 2 FLR 1029, CA ........................................................82
Westminster City Council v Clarke [1992] 2 AC 288 ..............203, 205, 222
Wheeldon v Burrows (1879) 12 Ch D 31 ............................133, 137–8, 141,
145–6, 151–2
Wheeler v JJ Saunders [1995] 2 All ER 697, CA......................138, 146, 152
Whittaker v Kinnear [2011] EWHC 1479 (QB) ............................26, 30, 81
Williams & Glyn’s Bank v Boland [1981] AC 487 ..............38, 47, 53–4, 132
Williams v Hensman (1861) 1 John & H 546,
30 LJ Ch 878 ................................................................................107, 114
Williams v Staite [1979] Ch 291 .......................................................83–4, 92
Willmott v Barber (1880) 15 Ch D 96 ..............................................80, 85–6
Winter Garden Theatre (London) Ltd v Millennium
Productions Ltd [1946] 1 All ER 678 ..........................................95–6, 98
Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 ..........137, 146, 153
Wood v Leadbitter (1845) 13 M & W 838........................................95–6, 98
Wright v Macadam [1949] 2 KB 744 ...................................135, 138–9, 145,
148–9, 153
Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 ........................................................166, 168, 176
Yaxley v Gotts [2000] 1 Ch 162 ......................................................26, 28, 30

Yeoman’s Row Management v Cobbe, see Cobbe v Yeoman’s Row
Management—
Young v Dalgety plc [1987] 1 EGLR 116 . . . . . . . . . . . . . . . . . . . . . . . .9, 22

1 Land
ґ
Fixtures:
• Items fixed for the
improvement and enjoyment
of land;
■ not chattels.
V
Landowner has rig h ts in: Legal and equitable

I) airspace (what is reasonable); rig hts
li) minerals (except gold, silver, oil, ■ Legal: enforceable against the
coal and petroleum); whole world.
Iil) articles In/on the ground (may ■ Equitable: enforceable against
depend on degree of control those with notice of these
exercised by landowner). rights.
Notice:
• Actual
• Imputed
LAND • Constructive
Real and personal

property Estates and interests in
Real property: land
I) real actions; Legal estates after 1925:
il) gives proprietary rights; • Fee simple absolute in
ili) divided into corporeal possession (freehold).
hereditaments and • Term of years absolute in
incorporeal hereditaments. possession (leasehold).
Personal property: Equitable interests after 1925·.
I) personal actions only; Interests under a trust; creation or
II) choice of either damages transfer of legal estate which fail
or return of item. the necessary formalities.
2 Land
Z 1.1 The significance of land

1 Land law deals with the legal relationship between land and the owner
of that land.
2 Many different people can have competing claims in respect of the same
piece of land.
3 The interests of owners of neighbouring land often affect the landown-
er’s enjoyment of his own land, so land should not be seen in isolation.
4 The competing interests of different landowners become more signifi-
cant as more land is taken into residential ownership.
5 Ownership of land therefore comprises not only rights one may have
over one’s own land, but also rights one may have over a neighbour’s
land. Such rights may include the right to use a neighbour’s land in a
particular way or to prevent a particular use a neighbour may wish to
make of the land.
Z 1.2 The definition of land
Definition
s 205(1 )(ix) Law of Property Act
‘Land of any tenure, and mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings (whether the division is horizontal, vertical
or made in any other way) and other corporeal hereditaments and incorporeal
hereditaments
f Λ
The landowner has rights to A rticle s fou nd in o r attached .
airspace above the land (what to th e land
is reasonable for the enjoyment
■ Articles found in the land
of the land) - Kelsen v Imperial
generally belong to the
Tobacco (1957); Bernstein v
landowner - Elwes v Brigg Gas
Skyviews and General Ltd LAND ' Co (1886)
(1978).
■ Articles found on the land
Even a very small interference depend on the degree of
with a landowner’s airspace control over the land exercised
could constitute a trespass - by the landowner - Parker v
Laiqat v Majid (2005) British Airways Board (1982).
• The greater the degree of
control the more likely the
article belongs to the
landowner.
The landowner has rights to mineral deposits, except: gold, silver, coal, oil and
natural gas, which all belong to the Crown.
Real and personal property 3
‘Whoever owns the soil owns everything up to the heavens and down to the
depths of the earth’ (Cuius est solum, eius est usque ad coelum et ad inferos).
A landowner has no rights to enter the land of his neighbour in order to carry
out repairs to his own property (John Trenberth Ltd v National Westminster
Bank (1979)).
The Access to Neighbouring Land Act 1992 allows a landowner the right to
make an application to court for an order allowing access for specified repairs.
The terms of the order are very strictly limited to whatever access is neces-
sary for the essential repairs to be carried out.
The ground immediately below the surface is owned by the landowner. If
there is a cellar or open space below the land, it is owned by the landowner
irrespective of whether he is aware of it or not (Grigsby v Melville [1974]).
Z 1.3 Real and personal property

1 Property is divided into real and personal property.
2 Real property mainly comprises land and is property that can be recov-
ered by a real action, allowing a claimant to recover the property itself.
3 Personal property is property that can only be recovered by a personal
action, allowing the defendant a choice between the return of the item
or paying a sum in damages.
4 Historically, leaseholds were treated as personal property and could only
be recovered by personal action (i.e. the claimant might have to be satis-
fied with damages only).
5 Today, the important issue is whether a right over land is personal or
proprietary.
6 A proprietary right is a right in the land itself, which can be binding on
a third-party purchaser.
7 A lease is now defined as a proprietary right in land.
8 A personal right is a right against another person and cannot bind a
third party (e.g. a bare licence only gives the licensee the right to remain
on the land until the licence is revoked by the licensor).
1.3.1 Real property

1 An estate in land is a right over land for a period of time.
2 Under the Law of Property Act (LPA) 1925 s 1(1) there are only two
legal estates in land: leasehold and freehold.
4 Land
3 An estate in land can also be called real property.

4 Land includes rights called incorporeal and corporeal hereditaments.

5 Hereditaments are rights in land that can be inherited and so can pass
under a will or an intestacy.
6 Corporeal hereditaments are physical objects (e.g. land and anything
attached to it, such as buildings, trees and minerals).
7 Incorporeal hereditaments are rights in land that are not physical things
(e.g. easements and profits), but can be very valuable.
Z 1.4 Legal and equitable rights

1 Historically:
O legal rights were enforceable only in the common law courts of the
King;
O equitable rights were enforceable by the King’s Chancellor in the
Court of Chancery, but only at his discretion.
2 Today, legal rights are distinguished from equitable rights in land
because only the owner of a legal estate can deal with the estate at law,
and the owner of the equitable estate merely has rights in equity.
3 The owner of an equitable estate may be able to claim the right to be
consulted before the legal estate is sold.
4 In certain circumstances the purchaser may take the estate subject to an
equitable estate.
5 Apart from the two legal estates arising under s 1(1) LPA 1925, there
are lesser interests that are enforceable at law, called legal interests,
which are listed under s 1(2) LPA 1925 (e.g. easements, rentcharges and
legal mortgages).
6 Any right that can exist ‘at law’ may give rise to a legal right, but only if
certain statutory requirements are met (e.g. legal rights in land must
generally be created and conveyed by deed: LPA 1925 s 52(1)).
7 Any right that does not qualify as a right in law must necessarily exist in
equity: LPA 1925 s 1(3):
O interests of a beneficiary under a trust – the trustee owns the legal
estate and the beneficiary owns the equitable estate;
O interests under contract to create legal estates or interests – the
purchaser is treated as owning an equitable estate from the date the
contracts are exchanged;
The doctrine of notice and the 1925 legislation 5
O interests that are improperly created – a deed must be used to convey
an interest in land and it must be signed, witnessed and delivered:
s 52 LPA 1925, s 1(1) LP(MP) 1989;

O interests that become equitable as a result of statutory reform – any
interest that is not within s 1(1) or s 1(2) LPA 1925 (e.g. life estates)
will only exist in equity.
8 The main difference lies in the enforceability of these rights against third
parties.
9 Legal rights are enforceable against the world although, in registered
land, the right will only take effect in law when it has been entered on
the register.
10 Equitable rights can only be enforced against third parties who have
notice of these rights either through registration or occasionally in
unregistered land because they have actual notice of the rights.
Z 1.5 The doctrine of notice and the 1925

legislation
Before 1925 the purchaser of land bought the land subject to an equitable
estate If they had notice of the estate. Notice could be actual, constructive or
ImDuted.
A purchaser had A purchaser had A purchaser would have

actual notice if he constructive imputed notice if his legal
actually knew of notice if he advisor or agent had
rights affecting would have been made investigations and
the land because aware of the discovered rights. This is a
he had been told estate if he had type of constructive notice.
of the rights or he checked for A purchaser should
had found out for himself. always visit the property
himself. because he may be bound
by rights that can only be
discovered by physically
inspecting the property
(Kingsnorth Trust v Tizard
(1986)).
6 Land
Z 1.6 The doctrine of estates

Legal estates before 1925 Fee simple Fee tail Life estate
Legal estates after 1925 (reduced to tw o)

Fee simple
• inheritable.
Absolute in possession:
• no limits on ownership;
• immediate enjoyment;
• term of years absolute.
Legal interests after 1925:

• easements;
• rent charges;
• legal mortgages;
• other interests;
• right of re-entry;
• term of years absolute.
Equitable interests:
• interests of a beneficiary under a trust;
• interests under a contract to create a legal estate or interest;
• interests which are improperly created;
• interests which become equitable as a result of statutory reform.
1 After 1066, all land was held to be owned by the King and his subjects
were then granted rights in that land.
2 An estate in land was a right of any landowner to enjoy the land as
owner for a period of time.
3 Before 1925, there were three freehold estates in land:
O fee simple – very close to full ownership of land and could continue
through successors (Walsingham’s Case (1573): ‘he who has a fee
simple in land has a time in the land without end, or the land for
time without end’);
O fee tail – this lasted as long as the original grantee or his direct
descendants were alive;
O life estate – this lasted as long as the life in question.
Estates in land after 1925 7
Z 1.7 Estates in land after 1925

After s 1(1) Law of Property Act 1925, the number of legal estates in land
was reduced to two:
O an estate in fee simple absolute in possession (the freehold estate);
O an estate for a term of years absolute (the leasehold estate).
1.7.1 The fee simple absolute in possession

1 Fee simple means freehold ownership that can be inherited on death.
2 Absolute suggests there are no limits on ownership (e.g. a condition
that ownership will cease if X joins the Tory Party would limit
ownership).
3 In possession suggests immediate entitlement to occupation and enjoy-
ment of the land. No one else has a prior claim.
4 If property is transferred subject to a condition (e.g. Greenacres to
Richard provided that he does not become a lawyer), it will take effect
as a conditional fee simple and will be a legal estate in land.
5 If property is transferred on condition that the transfer will only last
until a determining event occurs, it will take effect as a determinable fee
simple and will be an estate in equity only (e.g. a gift of land to Richard
until he becomes a lawyer).
1.7.2 Term of years absolute

1 This is a leasehold estate and, unlike the freehold estate, is of limited
duration.
2 It must have a fixed and certain maximum duration (Lace v Chandler
(1944)), although the term may be subject to renewal.
3 A sublease can be created out of the term of years absolute, but this must
be a term less than the leasehold (e.g. on a lease for five years, a sublease
of four years and 11 months will be valid but a sublease of five years, or
five years and a day, will be invalid).
1.7.3 Legal interests

1 Apart from the two legal estates there are lesser rights that can be
created at law.
8 Land
2 These include:
O an easement, right or privilege in or over land, for an interest equiva-

lent to an estate in fee simple absolute in possession, or a term of
years absolute (s 1(2)(a) LPA 1925);
O a rentcharge in possession (this obliges the purchaser of land to pay
money to a named person every year after purchase of a plot of land)
(s 1(2)(b));
O a charge by way of legal mortgage (s 1(2)(c));
O other similar charge on land not created by an instrument (of very
little importance today) (s 1(2)(d));
O rights of re-entry exercisable over a legal term of years absolute (this
is the right reserved to the owner of the rentcharge to enter the land
if the owner of the estate fails to pay the sum due) (s 1(2)(e)).
Z 1.8 Fixtures
1 When does a chattel become a fixture? Quinquid plantatur solo, solo
cedit – ‘whatever is attached to the soil becomes part of it’.
2 Has the chattel become attached to the land? ‘What is annexed to the
land becomes part of the land’ (Blackburn J, Holland v Hodgson
(1872)).
3 Blackburn J laid down two tests of annexation:
O Chattels fixed to land. Consider:
i) the degree of annexation (how firmly a chattel is attached to
land);
ii) the purpose of annexation (why a chattel was attached to the
land);
iii) whether the chattel was fixed to the land to improve the land
(fixture). (May be part of a grand architectural design as in
D’Eyncourt v Gregory (1866) (part of architectural design/
fixture), or an item to be enjoyed for itself (Leigh v Taylor (1902)
(tapestries held to be chattels), Berkley v Poulett (1976);
iv) whether the chattel was fixed to the land for the use and enjoy-
ment of the chattel (chattel).
O Chattels resting on the land.
i) Consider whether they were intended to become part of the
land (fixture): Hamp v Bygrave (1982) (valuable stone urns
Items found in and on the land 9
and pots/fixtures), Berkley v Poulett (1976) (statue and sundial/

chattels), Elitestone Ltd v Morris (1997) (bungalow resting on
its own weight/fixture), Chelsea Yacht and Boat Co Ltd v Pope

[2001], Mew v Tristmire [2011].
ii) Special rules apply to domestic fixtures in the home (TSB
Bank v Botham [1996]), although the key issue is still whether
the object intended to provide a lasting improvement to the
home.
4 Tenants have the right to remove certain fixtures called ‘tenant’s
fixtures’:
i) ornamental and domestic fixtures (Spyer v Phillipson [1931]);
ii) trade fixtures (Young v Dalgety [1987]);
iii) certain agricultural fixtures.
Tenants are under a duty to make good any damage (Mancetter
Development Ltd v Garmanson Ltd (1986)).
Z 1.9 Items found in and on the land

1 The lawful owner of an item has the best claim to a lost item (Moffat v
Kazana (1969)).
2 The finder of an item will have a good claim under the principle of
‘finders keepers’ (Armory v Delamirie (1722); Bridges v Hawkesworth
(1851)).
3 If an employee finds an item during the course of his employment, the
employer will be entitled to that item (M’Dowell v Ulster Bank (1899);
South Staffs Water Co v Sharman (1896)).
4 Where an item is found in a place where the public have access, the
finder cannot claim the item if the landowner can demonstrate that he
had exercised a sufficient degree of control over the land (Parker v
British Airways Board [1982]).
5 Where an item is found ‘in’ the land, the landowner has a better claim
than the finder (Waverley BC v Fletcher (1996); Elwes v Brigg Gas Co
(1896)).
6 The finder of an item concealed within the land must demonstrate that
he had permission to dig in the land in order to claim the item.
7 A leaseholder has a good claim to an item where it can be proved that it
came onto the land after the lease began.
10 Land
Z 1.10 Treasure
1 An item that constitutes treasure under the Treasure Act 1996 will be
the property of the state.
2 Objects of treasure are defined under s 1 Treasure Act.
3 They include objects over 300 years old that have a precious metal
content of at least 10 per cent, and 10 or more coins over 300 years old
of any metal content, and two or more coins made of precious metal
over 300 years old. Objects found at the same time as treasure can also
constitute treasure if they are over 200 years old.
4 A finder of treasure may be granted a reward at the discretion of the
Secretary of State.
Key Cases Checklist
Kelsen v Imperial Tobacco [1957] 2 QB 334 HC
Key Facts
The claimant successfully claimed an injunction against the

defendants based on trespass. They had hung an adver-
tising sign that projected into the airspace above the claim-
ant’s land by four inches. Since it was an action in trespass,
an injunction could be granted without proof of any actual
damage.
Key Law
The landowner owns as much of the airspace as is neces-

sary for his/her reasonable enjoyment of the land.
Lord Bernstein of Leigh v Skyviews &

General Ltd [1978] QB 479 HC
Key Facts
The defendants flew a light aircraft over the claimant’s land,

taking aerial photographs of his house. The claimant sued
in trespass, arguing that he owned the airspace above his
property. However, it was held that no actionable trespass

had occurred because the ownership of airspace was

restricted to what was necessary for the landowner’s
reasonable enjoyment of the property.
Key Law
The landowner’s rights do not extend to rights in the

airspace to an unlimited height.
Key Judgment
Griffiths J
‘The problem is to balance the rights of an owner to enjoy
the use of his land against the rights of the general public to
take advantage of all that science now offers in the use of
airspace. This balance is, in my judgment, best struck in
our present society by restricting the rights of an owner in
the airspace above his land to such height as is necessary
for the ordinary use and enjoyment of his land and the
structures upon it, and declaring that above that height he
has no greater rights than any other member of the public.’
1.2 John Trenberth Ltd v National Westminster

Bank (1979) 39 P & CR 104 HC
Key Facts
An injunction was sought by the claimants after the defend-

ants had erected scaffolding on their property without first
gaining their permission. The defendants had a statutory
duty to repair their property and this could only be carried
out if scaffolding was erected on the claimant’s land.
Permission to erect the scaffolding had been persistently
and irrationally refused.
Key Law
The injunction was granted by the court. They declared that

the landowner has no specific right to enter the land of
another to carry out repairs.
Key Comment
The law has now been changed by the Access to Neighbouring

Land Act 1992, which allows landowners the right to go to
12 Land
court to seek an order allowing them the right to enter the

land of another specifically to carry out essential repairs.
Laiqat v Majid [2005] EWHC 1305 (QB) HC
Key Facts
An extractor fan that projected over the claimant’s land by

750 millimetres at a height of 4.5 metres constituted a
trespass.
Key Law
Even a very small interference with a landowner’s airspace

could constitute a trespass.
Hunter v Canary Wharf Ltd [1997] 2 All ER 426 HC
Key Facts
Owners of properties in London unsuccessfully brought an

action in nuisance against the owners of a tower block,
arguing that it had interfered with television reception.
Key Law
A landowner has rights in land that allow reasonable enjoy-

ment and did not extend to rights to television reception.
Key Comment
This case also considered the rights of persons other than

the landowner to bring an action in nuisance. It was held
that such an action is confined to those who are linked to
the land by some form of possessory claim and this did not
extend to licensees.
1.2 Grigsby v Melville [1974] 1 WLR 80 CA
Key Facts
A cellar underneath the claimant’s land could only be

accessed from a neighbouring property but, nevertheless,
the court held that it was owned by the claimant and the
defendant, his neighbour, had to pay rent if he wanted to

use it for storage.
Key Law
The landowner owns the land immediately below his land

even if it cannot be accessed easily from his land.
1.9.2 Armory v Delamirie (1722) 1 Strange 505

(93 ER 664) CA
Key Facts
A chimney sweep’s boy found a ring. He took it to a jeweller

who removed the stone and replaced it with glass and then
refused to give it back to the boy. The court held that the
jeweller must return the ring to the boy and replace the
valuable jewel that had been removed.
Key Law
The claimant who finds a chattel that has been lost has a
good claim as against anyone, except the true owner.
1.9.2 Bridges v Hawkesworth (1851) 21 LJ QB 75 HC
Key Facts
The claimant went to the defendant’s shop on business and

as he was leaving he found a small parcel lying on the floor
of the shop. He found it contained a large sum of money.
Key Law
He was able to claim the money for himself, based on the

maxim ‘finders keepers’.
14 Land
1.2 Parker v British Airways Board [1982]

QB 1004 CA
Key Facts
The claimant found a gold bracelet in the executive lounge

at Heathrow Airport. He handed it to the defendants for
safekeeping while they sought the owner but he claimed it
for himself if the true owner could not be found. It was held
that the claimant was entitled to the bracelet. Although the
British Airways Board had exercised a degree of control
over the airport lounge, this was limited to supervising
admittance to the lounge. Proper control would include a
lost property policy, which was published to the passen-
gers using the lounge.
Key Law
Rights and liabilities of the occupier:

1 An occupier of the land has rights superior to those of a
finder over chattels in or attached to land.
2 An occupier of a building has rights superior to those of
a finder over chattels upon or in, but not attached to,
that building if, but only if, before the chattel is found,
he has manifested an intention to exercise control over
the building and the things that may be upon it or in it.
3 An occupier (within 2) is under an obligation to take
such measures as in all the circumstances are reason-
able to ensure that lost chattels are found and, upon
their being found, whether by him or by a third party, to
acquaint the true owner of the finding and to care for
the chattels meanwhile.
Key Judgment
Donaldson LJ
‘On the evidence available there was no sufficient manifes-
tation of any intention to exercise control over lost property
before it was found, such as would give the defendants a
right superior to that of the plaintiff or indeed any right over
the bracelet. As the true owner has never come forward, it
is a case of “finders keepers”.’
1.9.3 South Staffordshire Water Company v

Sharman [1896] 2 QB 44 CA
Key Facts
Employees of the claimants found several valuable rings

lodged in muddy water, while cleaning a pond.
Key Law
It was held that they could not claim these for themselves
because they were embedded in the land and therefore
belonged to the landowner. They were not lying on the
land.
Key Judgment
Lord Russell CJ
‘Where a person has possession of a house or land, with a
manifest intention to exercise control over it and the things
which may be upon it or in it, then, if something is found on
that land, whether by an employee of the owner or by a
stranger, the presumption is that the possession of that
thing is in the owner of the locus in quo.’
1.9.4 Parker v British Airways Board [1982] QB

1004 (above) CA
Key Judgment
Donaldson LJ
‘The chattel is to be treated as an integral part of the realty
as against all but the true owner, and so, incapable of being
lost or that the finder has to do something to the realty in
order to detach the chattel and, if he is not thereby to
become a trespasser, will have to justify his actions by
reference to some form of licence from the occupier. In all
likely circumstances, that licence will give the occupier a
superior right to that of the finder.’
16 Land
1.9.5 Waverley Borough Council v Fletcher [1995]

3 WLR 772 CA
Key Facts
The defendant used a metal detector in a public park and

found a medieval brooch buried nine inches below the
surface. He was allowed to use the metal detector in the
park but he became a trespasser when he started digging
in the land.
Key Law
It was held that the rights of the local authority landowner

were superior to the rights of the claimant. The finder
cannot claim his rights are superior to those of the
landowner.
Key Problem
The case of Waverley also looked at situations where an

item may have worked its way just under the surface. In
these cases the law may not consider the chattel as being
attached to the land and the finder may have a good claim
if the true owner does not come forward. What would the
position be if a valuable piece of jewellery had fallen to the
ground and rain, mud and leaves had later covered it?
Would that now be part of the land?
1.9.5 Elwes v Brigg Gas Company (1886) 33

Ch D 562 HC
Key Facts
A tenant found a prehistoric longboat whilst excavating the

leased land. He claimed it for himself as occupier of the
land but was unsuccessful. The item was buried in the land
and clearly had been in the land when the tenant had
entered the land.
Key Law
The rights of the freeholder were held to be superior to the

rights of the leaseholder because the item had become
buried long before the lease had been granted.
1.9.1 Moffat v Kazana [1969] 2 QB 152

HC
Key Facts
The defendant found money hidden in a biscuit tin in the

roof of his house three years after he had bought it. It was
proved that the money had belonged to the vendor who
had forgotten all about it. He had died and the land was
sold to the defendant.
It was held that the deceased’s estate had a good claim to
the money because the true owner has a better claim over
property than the finder or the landowner in whose land the
items are found, unless he has abandoned the items.
Key Judgment
Wrangham J
‘If Mr Russell never got rid of the notes, that is to say, never
got rid of ownership of the notes, he continued to be the
owner of them and, if he continued to be the owner of them,
he had title to those notes which nobody else, whether the
owner of the land in which they were found, or the finders,
or anybody else, would have.’
1.8.2 Holland v Hodgson (1872) LR 7 CP 328 HC
Key Facts
A number of spinning looms were nailed to the floor of a

factory and the mortgagee claimed ownership of the looms
when he took possession of the premises. The court held
they were fixtures and were therefore part of the land.
Key Law
Articles attached to the land only by their own weight are

not part of the land unless it can be shown that that was
intended. However, articles attached to the land, even if the
degree of attachment is slight, are to be considered part of
the land, and therefore fixtures, unless circumstances
suggest that they were intended to continue to be a chattel.
The tests therefore relate to:
ic the degree or mode of annexation;
iic the general purpose of annexation.
18 Land
Key Judgment
Blackburn J
‘Thus blocks of stone placed one on top of another without
any mortar or cement for the purpose of forming a dry
stone wall would become part of the land, though the same
stones if deposited in a builder’s yard and for conven-
ience’s sake stacked on the top of each other in the form of
a wall would remain chattels.’
1.8.3 D’Eyncourt v Gregory (1866) LR 3 Eq 382 HC
Key Facts
Several stone figures and statues passed as fixtures

although they were attached by their own weight and could
be easily removed from the land because they were part of
the overall architectural design.
Key Law
Where the purpose of annexation was to enhance the land

rather than to enhance the chattel, an item would be held to
be a fixture.
1.8.3 Hamp v Bygrave (1983) 266 EG 720 HC
Key Facts
A number of stone urns, stone ornaments and statues

standing on their own weight were claimed as chattels by
the vendors. A single stone plinth was affixed to the ground.
They also claimed patio lights fixed to the wall.
Key Law
In applying the two tests from Holland v Hodgson (above)

for chattels, the court held that items firmly fixed to the land
could remain chattels if the purpose of annexation was to
enjoy them as chattels and the degree of annexation was
necessary for the items themselves. In applying this test
they were all held to be chattels.
1.8.3 Berkley v Poulett (1977) 241 EG 911

CA
Key Facts
The purchaser of land claimed that a sundial, some statues

and a number of pictures fixed into recesses in a panelled
room removed by the vendor on sale were fixtures and
should be returned. It was held that since they did not
constitute part of a grand architectural design, they could
not pass as fixtures. There was evidence that the owners
often moved the statues and the sundial about the garden.
This suggested that they remained chattels. However, a
plinth on which the items sometimes rested remained a
fixture.
Key Judgment
Scarman LJ
‘A degree of annexation which in earlier times the law would
have treated as conclusive may now prove nothing. If the
purpose of the annexation be for the better enjoyment of
the object itself, it may remain a chattel, notwithstanding a
high degree of physical annexation. Clearly, however, it
remains significant to discover the extent of physical distur-
bance of the building or the land involved in the removal of
the object. If an object cannot be removed without serious
damage to, or destruction of, some part of the realty, the
case for its having become a fixture is a strong one.’
1.8.3 Elitestone v Morris [1997] 2 All ER 513 HL
Key Facts
A number of chalet homes had been built near Swansea.

They rested on concrete pillars that were attached to the
ground. Although similar to mobile homes, they could not
be moved without demolition. The claimant had been
served with a notice to quit by the owner of the land but
claimed that he had protection under the Rent Acts. He
could only claim this if the chalet bungalow was part of the
realty and not a chattel. The court held that the house was
a fixture and formed part of the realty.
20 Land
Key Law
The main test to apply was the purpose of annexation, not

the degree of annexation. Even if a structure could be
removed, it might still be a fixture. However, where a struc-
ture cannot be removed without demolition, it must be a
fixture.
1.8.3 Chelsea Yacht and Boat Co Ltd v Pope [2001]

2 All ER 409 CA
Key Facts
A houseboat was permanently moored and essential serv-

ices had been connected. It was claimed that because of
this the houseboat had become part of the land and would
pass as a fixture.
It was held that as the boat could easily be moved to
another stretch of water, without incurring damage to the
boat, it remained a chattel. The essential services could be
easily disconnected from the boat.
Key Problem
The difficulty here is that some items start life as chattels

but are then used in such a way that they will become part
of the property and therefore are fixtures. If a pile of stones
is waiting to be made into a path then the stones have not
yet become fixtures and remain chattels until the building
work has been done. This point was illustrated by Blackburn
J in Holland v Hodgson and later considered in Elitestone v
Morris.
Key Comment
Issues concerning ownership of chattels are usually

decided between the parties and by reference to the
Standard Conditions of Sale, which are in general use in
conveyancing.
1.8.3 TSB Bank plc v Botham [1996] EGCS 149

CA
Key Facts
The bank repossessed and sold a flat that had been owned
by Mr Botham. He claimed that a number of everyday items
were chattels and remained his property.
Key Law
It was held that items with a high degree of annexation,

such as kitchen work surfaces, bathroom fittings and the
kitchen units, were all fixtures. Items deemed to be white
goods, such as the cooker, fridge, freezer and washing
machine, were all chattels. Items attached in an insubstan-
tial way, such as curtains, carpets, blinds and light fittings,
were all chattels.
Key Judgment
Roch LJ
Roch LJ considered why bathroom fittings were fixtures:
‘They are not there . . . to be enjoyed for themselves, but
they are there as accessories which enable the room to be
used and enjoyed as a bathroom. Viewed objectively, they
were intended to be permanent and to afford a lasting
improvement to the property.’
1.8.4 Spyer v Phillipson [1931] 2 Ch 183 HC
Key Facts
A tenant had installed antique panelling. This was consid-

ered to be ornamental and therefore the tenant could
remove this so long as it did not damage the property.
Key Law
A tenant cannot remove fixtures unless they come within

one of three categories: trade fixtures, agricultural fixtures,
or domestic or ornamental fixtures.
22 Land
1.8.4 Young v Dalgety plc [1987] 1 EGLR 116

CA
Key Facts
Light fittings and a carpet installed by a tenant could be

removed because they were trade fixtures.
1.8.4 Mancetter Developments Ltd v Garmanson

Ltd [1986] QB 1212 CA
Key Facts
Tenants who ran a chemical business claimed the right to

remove an extractor fan from the wall of their premises.
Key Law
The extractor fan could be removed so long as the tenant

made good the damage to the property. In this case the
extractor fan had left a large hole, which had to be made
good by the tenant.
Key Judgment
Dillon LJ
‘The analysis of the liability at common law is . . . that the
liability to make good the damage is a condition of the
tenant’s right to remove tenant’s fixtures: therefore, removal
of the fixtures without making good the damage, being in
excess of the tenant’s right of removal, is waste, actionable
in tort, just as much as removal by the tenant of a landlord’s
fixture that the tenant has no right to remove is waste.’
2 Transfer and
creation of rights
in land
P re-contract enquiries Exchange o f contracts

• Parties are not bound • The contract will be binding on
although they may have the parties.
reached agreement. • The contract must comply with
• Purchasers may be subject to s 2 LP(MP)A 1989.
gazumping. • The agreement should be
• A lock-out agreement may be registered as an estate
negotiated. contract.
STAGES IN CONVEYANCING
r
C om pletion and registration o f title
• The conveyance must be made by deed: s 52(1)
LPA1925.
• Registered land: the purchaser must enter his/her
name at the Land Registry.
• Unregistered land: the purchaser will become
owner on transfer of the title deeds but has a duty
to register the title.
24 Transfer and creation of rights in land
Z 2.1 Acquisition of legal rights in land

depends on proving that title to

the land has passed to the purchaser
1 The purchase and sale of rights in land depend on a system called
conveyancing.
2 There are two different systems of proving title to land and investigating
third-party rights in that land.
3 The systems are called ‘unregistered’ conveyancing and ‘registered’
conveyancing. Today, even if there is a sale of unregistered property,
there is an obligation on the buyer to register the title on
purchase.
4 There are several stages in the acquisition of rights in land:
a) pre-contractual enquiries;
b) exchange of contracts;
c) completion;
d) registration.
Z 2.2 Pre-contractual enquiries

1 Until contracts have been exchanged, the parties are not bound,
although they may have agreed the terms of the contract.
2 An agreement ‘subject to contract’ does not bind the parties.
3 Either party is free to withdraw, usually without penalty, at any time up
until the exchange of contracts.
4 A purchaser may be subject to ‘gazumping’, where the vendor accepts a
higher price from a second purchaser even after agreeing to sell to the
first purchaser.
5 Likewise, the vendor (seller) may be subject to ‘gazundering’, where the
purchaser forces the vendor to accept a lower price.
6 Gazumping can be very costly to purchasers who spend money on finding
out information about the property they are about to purchase.
7 A purchaser may be able to negotiate a ‘lock-out agreement’, which
prevents the vendor from selling to any other purchaser during an
agreed period of time. It does not give the purchaser the right to
enforce sale but entitles the purchaser to recover damages for breach of
the agreement (Pitt v PHH Asset Management Ltd (1994)).
Pre-contractual enquiries 25
8 A lock-out agreement will not force the vendor to sell to the purchaser
but the vendor may agree to sell to a purchaser who is ready to proceed,
even if the purchase price is slightly lower.
Z 2.3 The exchange of contracts

1 The contract is the binding contract between the vendor and the
purchaser.
2 The contract must comply with s 2 Law of Property (Miscellaneous
Provisions) Act 1989, which holds that the contract must be in writing
and must incorporate all the terms agreed and must be signed by both
parties (First Post Homes Ltd v Johnson [1995]).
3 Any variation in the terms of the contract must also comply with s 2
LP(MP)A 1989.
4 The grant of an option must also comply with the section although the
exercise of the option is outside s 1 LP(MP)A 1989 (Spiro v Glencrown
Properties Ltd (1991)).
5 Failure to register the equitable interest arising after exchange of
contracts makes the land vulnerable to a further attempt to sell the
property by a fraudulent vendor.
6 Once the contracts have been exchanged, neither side will be free to
withdraw from the sale without either incurring a financial penalty or an
order for specific performance.
7 Once there is a valid exchange of contracts for sale, the vendor becomes
a trustee for the purchaser of the estate sold (Lysaght v Edwards (1876)).
Z 2.4 Exceptions to the requirements of

s 2 LP(MP)A 1989
1 Contracts to grant leases of less than three years at full market rent
(s 2(5)(a)). The contract can be created orally.
2 A contract made in the course of a public auction.
3 Collateral contracts, but only if they are not considered to be a disposi-
tion of an interest in land.
4 Where the claimant successfully bases his claim on proprietary estoppel,
no written agreement need be proved.
5 Where the parties are clearly aware of the need for formal contracts,
such as commercial transactions, proprietary estoppel cannot be success-
fully pleaded (Cobbe v Yeoman’s Row Management Ltd (2008);

Whittaker v Kinnear [2011] EWHC 1479).
6 Constructive trusts. If the vendor holds the property on constructive

trust, there is no requirement for a written contract. A constructive
trust will arise where it would be unconscionable for the owner to
deny the claimant rights. See s 2(5)(c) LP(MP)A 1989, Yaxley v Gotts
(2000).
Z 2.5 Completion and registration

1 After exchange of contracts the purchaser will investigate the vendor’s
title and carry out various searches to find out what rights affect the
property.
2 Under s 52(1) LPA 1925, all conveyances of land must be made by deed.
In unregistered land it will be called a conveyance, but in registered land
the deed is called a transfer.
3 A deed is a written document that requires a signature from the
grantor and a witness, and a statement saying it is a deed (s 1 LP(MP)A
1989).
4 The purchase monies will be paid over to the vendor.
5 In unregistered conveyancing, the vendor will transfer the title deeds
to the purchaser who will then be regarded as owner of the land
at law.
6 Since 1989 (Registration of Title Order), every sale of unregistered land
must be completed by registration of title.
7 First registration must be carried out by the purchaser within two
months of the execution of the deed otherwise the disposition will be
void.
8 In registered conveyancing, the legal estate passes when the purchaser
registers as the new owner at the Land Registry.
Key Cases Checklist

2.2.7 Pitt v PHH Asset Management [1994]

1 WLR 327 CA
Key Facts
A lock-out agreement between the vendor and the

purchaser, specifying that the vendor would not accept any
offers for a specified period, was held to be enforceable
between the parties. The seller accepted an offer during
the lock-out agreement and the purchaser could claim
damages for the expenses he had incurred during that
time.
Key Law
The purchaser will not have any enforceable rights in

land until contracts are exchanged between the parties,
leaving a purchaser vulnerable to the possibility of being
‘gazumped’ by another purchaser offering more money to
the vendor.
It does not give the purchaser the right to enforce sale but
entitles the purchaser to recover damages for breach of the
agreement.
2.3.2 First Post Homes Ltd v Johnson [1995]

1 WLR 1567 CA
Key Facts
The purchaser had prepared a letter for the vendor to sign:

the purchaser’s name was typed at the top of the letter. The
purchaser had signed the plan mentioned in the letter but
not the letter itself. There was no contract because the plan
did not refer to the letter and the purchaser had not signed
the contract as required by statute.
Key Law
Under s 2 of the Law of Property (Miscellaneous Provisions)

Act (LP(MP)A) 1989, contracts for the sale or disposition of
an interest in land must be in writing, incorporate all terms
and be signed by both parties.
2.3.4 Spiro v Glencrown Properties Ltd [1991]

Ch 537 HC
Key Facts
A notice to exercise an option had only been signed by one

4.2x.2 Commission
of v Belgium
the parties. It was 77/69
held to be [1970]
effective even ECR
though237
only
one party had signed it. Although the initial grant of the
option had to comply with s 2, the exercise of the option
Key Facts
did not.
2.4.6 Yaxley v Gotts [2000] 1 Ch 162 CA
Key Law
control.
The claimant was a self-employed builder who agreed to
Key
carry Law
out works on a property already divided into flats and,
in return, he was to acquire rights over the ground floor of
the
Thehouse by the not
ECJ would first accept
defendant.
thisThis arrangement
reasoning wasthat
and held not
put intounder
‘liability writing.
[ArtThe
258]second defendant
arises whatever thepurchased
agency of the
property
State whoseand,action
after an
orargument,
inaction isthe
theclaimant
cause ofwas
the excluded
failure to
from theobligations’.
fulfill its property. In spite of the lack of written agreement,
the claimant was granted rights in the property.
Key Comment
4.3.2
The judges in the Court of Appeal did not agree on which
basis the claimant’s rights should be upheld. Robert Walker
Key Facts
LJ favoured a constructive trust whereas Clarke and
Beldam LJJ suggested that proprietary estoppel could be
German importers, including Plaumann, complained that a
used where an agreement for the transfer of an interest in
refusal by the Commission to suspend customs duties on
land had not been put into writing, but they both agreed
mandarin oranges and tangerines exceeded its powers.
that a constructive trust was also appropriate.
Their argument failed when it was shown that any individual
Key Link
Consider
Key Lawthe nature of proprietary estoppel in Chapter 6
and the issues arising in cases where oral promises have
been made to transfer property rights and the grounds on
It was held that in order for a private applicant to claim
which the courts are prepared to uphold such rights
2.4.5 Cobbe v Yeoman’s Row Management [2008]

UKHL 55 HL
Key Facts
The owner of a building and a developer, Mr Cobbe,

reached an oral agreement in principle under which
Mr Cobbe would obtain planning permission to develop the
property and the property would be transferred to him for
development and later sale, with distribution of the profits
between the parties. The developer obtained the planning
permission and sought to enforce the agreement even
though it had never been put in writing.
Key Law
The House of Lords refused the developer’s claim

(reversing the Court of Appeal). It held that the claimant was
not entitled to the property or an increase in its value under
the doctrine of proprietary estoppel.
This was because the doctrine only applies where the
claimant had an expectation of a certain interest in land. In
this case, both parties knew that the deal had not yet been
completed and that the contract had to be in writing under
s 2 LP(MP)A 1989 and therefore there was no expectation
of an interest in land, merely an expectation of entering into
further negotiations.
The House of Lords also suggested that the doctrine of
proprietary estoppel would be inappropriate for commer-
cial transactions.
Key Judgment
Scott LJ
‘Section 2 of the 1989 Act declares to be void any agree-
ment for the acquisition of an interest in land that does not
comply with the requisite formalities prescribed by the
section. Subsection (5) expressly makes an exception for
resulting, implied or constructive trusts. They may validly
come into existence without compliance with the prescribed
formalities.’
2.4.5
Whittaker v Kinnear [2011] EWHC 1479 HC
Key Facts
In informal circumstances it is possible to rely on proprietary

estoppel in order to enforce property rights. A woman
sold her land to the purchaser who promised to give
her rights in the land and took subject to her rights. This
was not put into writing. When he later denied her rights,
the court upheld her claim on the basis of proprietary
estoppel.
Key Judgment
Lord Scott (Cobbe v Yeoman’s Row Management)

‘Proprietary estoppel does not have the benefit of this
exception . . . proprietary estoppel cannot be prayed in aid
in order to render enforceable an agreement that statute
has declared to be void.’
Key Comment
The House of Lords appear to be suggesting that a

constructive trust may be used to uphold an oral contract
for the sale of land but the case of Yaxley v Gotts was not
discussed in the speeches.
2.3.7 Lysaght v Edwards (1876) 2 Ch D 499 CA
Key Law
The Master of the Rolls, Jessel MR, held that once there is
a valid contract for sale, the vendor holds the estate on
trust for the purchaser.
3 The 1925
legislation and the

transfer of rights in
unregistered land
P rinciples: Equitable rig h ts in

unregistered land:
і) Involves Investigation of title deeds
Ii) Sale and other transactions will trigger ■ estate contracts;
registration of title. ■ equitable charges;
iii) Registration of charges in name of ■ equitable easements and profit a
owner under Land Charges Act 1925. prendre;
iv) Registration gives notice to the whole • restrictive covenants;
world. ■ beneficial interests under a trust.
v) Failure to register renders the right void
against a purchaser.
UNREGISTERED CONVEYANCING
Λ >
R egistration o f charges:
• Six classes of land charge (classes (A-F).
■ Effects of non-registration depends on class of land charge.
■ Class C(iv), D(i), (ii) and (iii) land charges will bind irrespective of
registration unless it is a sale to a purchaser of a legal estate for money or
money’s worth.
32 The 1925 legislation and the transfer of rights in unregistered land
Z 3.1 Background to the 1925 legislation

1 The 1925 legislation introduced many long overdue reforms to land law.
2 The main aims were to:
O simplify conveyancing;
O reduce the number of legal estates in land to two;
O provide a system to secure rights for those people owning equitable
rights;
O extend the system of registration of land charges in unregistered
land;
O extend the system of registration of title;
O abolish outdated rules and practices.
Z 3.2 Principles of unregistered conveyancing

1 Although the majority of titles of property in England and Wales are
registered, there remain significant numbers of unregistered titles.
2 The purchase of land with an unregistered title involves investigation of
the title deeds on each transaction.
3 Today, sale of an unregistered property takes place under the old rules,
but first registration at the Land Registry must immediately follow
because sale is a trigger for first registration of title.
4 Unregistered titles are subject to the Land Charges Act 1972 (formerly
the LCA 1925).
5 Rights affecting unregistered land must be registered as land charges at
the Land Charges Registry.
6 Registration of charges are made under the name of the owner of the
property rather than the name or number of the property (s 3 LCA 1972,
Oak Co-operative Building Society v Blackburn (1968)).
7 Registration of a land charge is deemed to give notice to the whole world
(s 198 LPA 1925).
8 Failure to register a land charge renders the right ineffective against a
purchaser, even if he/she has actual notice of the right (Midland Bank
Trust Co Ltd v Green (1981)).
9 A small number of rights in unregistered land remain subject to the
doctrine of the bona fide purchaser for value without notice:
System of registration 33
O the most important of these is the equitable interest of a

beneficiary under a trust of land where the legal title has been
conveyed by a sole trustee of land (Kingsnorth Trust v Tizard

(1986)); and
O rights based on proprietary estoppel (ER Ives Investment Ltd v High
(1967)).
Z 3.3 Equitable rights in unregistered land

1 These include, as in the case of registered land, different categories of
rights.
2 Rights that are inherently equitable, such as:
O estate contracts;
O equitable charges;
O equitable easements and profits à prendre;
O restrictive covenants;
O beneficial interests under a trust of land.
3 These rights must be entered on the Land Charges Register in order to
be binding on the purchaser.
Z 3.4 System of registration

1 Rights are registered under classes of land charge.
2 Under the LCA 1972 there are six classes of land charge, A–F (as shown
in the diagram). Of these six classes, the most important are Class C(i)
puisne mortgages, Class C(iv) estate contracts, Class D(ii) restrictive
covenants, Class D(iii) equitable easements and Class F home rights.
3 The effect of non-registration of the charge depends on the class of
charge involved.
4 Classes C(iv) and D(i), (ii) and (iii) will still be binding unless there has
been a sale to a purchaser of a legal estate for money or money’s worth,
and the purchaser of a lesser estate will still be bound by these classes of
land charge. The sale need not be for full market value.
5 A purchaser for value of an estate will take free of a non-registered
charge in the other classes.
4 s the interest in question a freehold estate or a leasehold

estate? YES The estate is protected against the world by documents of title
L.
contained in the bundle of deeds.
NO
f
Is the interest in question a legal interest, i.e. a legal The estate is protected against the world by documents of title
easement; a right of re-entry annexed to a lease or YES contained in the bundle of deeds.
mortgage; a rent charge equivalent to a legal estate; or a
charge by way of legal mortgage?
Is the interest registered as a: Is the interest registered as a:
Class A - statutory charge; or Class C (iv) - estate contract; or
NO Class В - legal aid charge; or Class D (i) - Inland Revenue
Class C (i) - puisne mortgage; or OR charge; or
Class C (ii) - limited owner’s charge; or Class D (ii) - restrictive covenant
ls the interest a registrable land post 1926; or
YES Class C (iii) - general equitable
charge? ^Class D (iii) - equitable easement? ^ YES
i charge; or
Class F - spouse’s right of occupation?
The interest '
NO
NO is void for
The interest is void for non-registration non
Is the new owner of the land a bona fide purchaser for
against a purchaser of the land or any ''Has the registration
value of a legal estate without notice of the equitable YES interest in it for valuable consideration. new against a
interest? NO purchaser of
owner
NO a legal
inherited
YES estate for
NO YES ^the land?
money or
money’s
The interest is protected by the registration, or because the new owner is a .worth. ,
The interest is void and unenforceable.
donee.
The effect of registration or non-registration of interests in land with unregistered title

Overreaching 35
Z 3.5 Move towards registration of all titles

1 The aim of the Land Registration Act 2002 was to ensure the gradual
phasing out of unregistered conveyancing.
2 Most dispositions of interests in unregistered land will represent a trigger
for registration of title.
3 Titles will only remain unregistered where no trigger for registration takes
place and the owner of the land decides not to voluntarily register title.
Z 3.6 Overreaching
Equitable rights under a trust may be binding on the legal estate if the
purchaser buys from a single purchaser with either actual or constructive
notice (Kingsnorth Trust v Tizard (1986)).
1 If the purchaser buys the land from two or more trustees, the equitable
rights may be ‘overreached’.
2 Overreaching is the transfer of equitable rights from land into the
purchase monies.
3 Overreaching will only take place under certain conditions:
O there must be a ‘purchase’ of the legal estate (includes a
mortgagee);
O there must be a conveyance of rights to the purchaser;
O the interest must be capable of being overreached;
O the purchase money must be paid to at least two trustees (s 27 LPA
1925).
4 Overreaching can still occur where the purchaser has notice of the
equitable rights.
Key Cases Checklist

3.2.6 Oak Co-operative Building Society v

Blackburn [1968] Ch 730 CA
Key Facts
Keylegal
The Factsowner of some property was called Francis David
Blackburn. An interest was registered against the name
of Frank had
Belgium David Blackburn.
breached The(now
Art 95 plaintiff argued
Art 114 thatbythe
TFEU) a
registration wastax
discriminatory invalid.
on The
wood.court held
The that as Government
Belgian an incorrect
name
arguedhad been
that an used in requisitioning
amendment the search,
was actually then the
put before its
use of an incorrect
Parliament but nevername
gainedin force
the initial registration
because waswas
Parliament not
ineffective.
dissolved in the meantime. It argued that, since it was
Key Judgment
control.
Key Law
Russell LJ
‘. . . if there be registration in what may be fairly described
as
Thea ECJ version of the
would notfull names
accept thisof reasoning
the vendor,andalbeit
heldnot a
that
version
‘liability which
under is[Art
bound
258] to be discovered
arises whatever the on aagency
search ofin the
correct
State whose full names, weinaction
action or would not
is the hold it aofnullity
cause against
the failure to
someone who does not search at all, or (as here) searches
fulfill its obligations’.
in the wrong name’.
4.3.2
3.2.8 Midland Bank v Green [1981] AC 513 HL
Key Facts
The owner
refusal by theof land granted to
Commission hissuspend
son an option
customs to duties
purchaseon
the land for
mandarin £22,500.
oranges andThis should exceeded
tangerines have beenitsregistered
powers.
as anargument
Their estate contract (i.e. as
failed when a class
it was C(iv)that
shown land
anycharge) but
individual
the son failed
in Germany to dohave
might so. imported
After an argument with
the fruit so theyhiscould
son, not
the
father tried to revoke
show ‘individual the option. When he discovered that
concern’.
the option had not been registered, the father decided to
convey
Key Law the land, which had nearly doubled in value, to his
wife with the sole purpose of defeating the rights of the son.
It was sold for £500, which was a fraction of its proper
It was held that in order for a private applicant to claim
value. The son later tried to exercise the option but it was
under [Art 258 TFEU] individual concern must be shown
declared void. It had been defeated on the sale to the wife.
and this means that the decision or Regulation must affect
the
It applicant.
was held by unanimous decision in the House of Lords that
the option was defeated by the sale from the father to the
mother. The wife and children of the now deceased son could
not claim the right to exercise the option to buy at the original
price of £22,500. The true value had risen to over £109,000.
Key Law
Under the land charges scheme in unregistered convey-

ancing, failure to register an interest in the land such as a
restrictive covenant or an estate contract is fatal as against
a purchaser for value. Issues of actual notice and bad faith
are irrelevant.
There will be a sale where the purchaser has paid ‘money or
money’s worth’ and he or she has thereby provided valuable
consideration. In this context, valuable consideration includes
nominal consideration so the very small sum paid by the
mother to the husband was deemed to be consideration.
3.2.9 ER Ives Investment Ltd v High [1967]

2 QB 379 CA
Key Facts
A right of way had been granted to the claimants, but it had

not been completed by deed of grant and was not regis-
tered at the Land Charges Register as a Class D(iii) land
charge, as assumed would be necessary for it to take effect
as a right in unregistered land.
Key Law
It was successfully argued that the nature of the right was

such that it fell outside the rules requiring registration and
therefore the doctrine of notice would apply and it was held
to be binding.
3.2.9 Kingsnorth Finance v Tizard [1986]

1 WLR 783 HC
Key Facts
A husband held the legal title to the matrimonial home on

implied trust for himself and his wife in equal shares; the title
was unregistered. After the relationship broke down, the
wife moved out, leaving the husband and the two children
living in the house. The wife frequently visited the house in
order to carry out certain household chores. The husband

took out a mortgage on the property, falsely representing

that he was the sole owner and no one else had an interest.
The husband arranged a visit from the agent of the mortga-
gees on a day when he knew his wife would not be there.
After the husband defaulted on the mortgage, the mort-
gagee sought possession of the property.
Key Law
The court held that the mortgagees had failed to make

proper enquiries and were fixed with notice of the wife’s
interest in the property. The court held that she had been in
occupation when the agent visited, since occupation did
not have to be ‘exclusive, continuous or uninterrupted’.
Key Link
Consider the position in registered land. The rights of the

wife in this case were not registrable, they were dependent
on actual notice and, in this case, the agent had failed
to check whether anyone had rights in the property. In
registered land, such rights are capable of entry on the
register but they are also capable of binding a purchaser as
an overriding interest if the claimant is in occupation.
Consider Williams & Glyn’s Bank v Boland [1981] AC 487
(Chapter 4).
4 Registration of title
Categories of
Alteration:
interest:
• Can be made by the
The three registers: • registrable interests;
Registrar or the court.
• registered charges;
• Includes correction of • the property register; • minor interests;
mistakes: • the charges register; • interests that
I) bringing the register up to • the proprietorship override the register.
date; register.
Ii) giving effect to any estate,
right or interest excepted
from the effect of
registration;
iii) removal of superfluous RIGHTS IN REGISTERED LAND
entries (Registrar alone).
• The power to rectify is
restricted if it will prejudicially
affect a proprietor in
possession. O verriding interests
• Giving effect to an overriding • LRA 2002 reduces the
interest is not seen as number of overriding
rectification. interests.
• Status depends
on whether first/
subsequent
Minor interests registration.
(burdens on the • Interests that are NOT
overriding under the
Indemnity: register)
2002 Act.
• Can be claimed by anyone • Equitable • Equitable easements.
who suffers loss due to interests that • Rights under the
rectification of the register or are neither Limitation Act 1980.
refusal to rectity. registrable
• Not payable where the loss estates/charges Rights overriding
suffered by a claimant is nor overriding. firs t registration:
caused by his own fraud or • Protected by: • Short leases (less than
negligence. i) notice; seven years).
• No compensation will be ii) restriction; • Rights of persons in
payable where the register iii) LRA 2002 actual occupation.
is altered to give effect to an removed • Some legal
overriding interest. cautions and easements and
inhibitions. profits.
V
Z 4.1 Features of registration of title

1 The system of registration of title introduced by the Land Registration

Act 1925 reflected three principles:
a) the ‘mirror principle’;
b) the ‘insurance principle’;
c) the ‘curtain principle’.
2 The ‘mirror principle’ holds that the register is an accurate and conclu-
sive reflection of all relevant interests affecting the land in question.
3 The ‘insurance principle’ guarantees the accuracy of the register and, if
the register is found to be inaccurate, persons affected by rectification
may be entitled to be indemnified (Schedule 8).
4 The ‘curtain principle’ protects the purchaser of land from interests
concealed behind the entries on the register, in particular trusts affecting
the land.
Z 4.2 The Land Registry

1 The Land Registry consists of three registers: the property register, the
charges register and the proprietorship register.
The pro pe rty register The charges register

This describes the property and This section shows details of any
includes all legal rights enjoyed by the incumbrances registered against the
property over neighbouring land, such estate, e.g. easements, restrictive
as easements. It will refer to a filed covenants.
plan prepared from an ordnance
survey map.
The p ro p rie to rsh ip register

This shows the name and address of the registered proprietor of the relevant title,
the date of registration and the nature of the title, e.g. absolute, good leasehold,
qualified or possessory. It also shows any restriction on ownership including
rights in equity behind a trust.
2 Since 1988, the general public has had open access to most titles entered
on the register for the payment of a small fee. Previously, access was only
allowed with the permission of the registered proprietor of the land.
Classification of interests in registered land 41
Z 4.3 Classification of interests in

registered land
1 In registered land there are four categories of interests:
a) registrable interests;
b) registered charges;
c) minor interests (now called ‘burdens’ on the register);
d) interests that override the register.
2 Registrable interests are rights in land capable of substantive registra-
tion: the fee simple absolute in possession, and the term of years
absolute in possession where it exceeds seven years (leases over seven
years).
3 Although registration of title is now compulsory, there remain substan-
tial numbers of unregistered titles.
4 There is no requirement to register title unless there is a disposition
affecting the title that triggers registration (e.g. a conveyance for value
or the creation of a legal mortgage).
5 If there is no disposition that acts as a trigger, registration of title is not
necessary. If property is owned by a corporate body or a charity, property
may not change hands for considerable periods of time.
6 As an incentive to landowners to bring property within the system of
registration, there is a reduction in registration fees for anyone who
registers their property voluntarily.
4.3.1 Events that trigger first registration

1 Section 4(1) LRA 2002 lists the events that trigger compulsory
registration:
a) transfers of a qualifying estate either for valuable consideration or by
way of gift or in pursuance of an order of any court or by means of an
assent;
b) leases granted for more than seven years;
c) first legal mortgages of a qualifying estate;
d) grant of a ‘right to buy’ under the Housing Act 1985.
2 Section 5 allows the Lord Chancellor to add new events that will trigger
compulsory registration by order.
4.3.2 First registration of title

1 When unregistered land is registered for the first time, the registration
can take several different forms:
O Absolute freehold title – the owner has all the rights of a fee simple
absolute owner, subject to rights appearing on the register and over-
riding interests. This is the most frequently awarded class of title and
is the most reliable.
O Possessory freehold title – an applicant will get a mere possessory title
if they cannot produce sufficient documentary evidence of title. A
possessory title will be subject to all adverse interests existing at the
date of registration. The registrar may upgrade the title to absolute
freehold at a later date.
O Qualified freehold title – this title is granted where the applicant
has a defect in his title so that registration takes subject to that
defect. This title may later be upgraded to absolute title if the defect
is rectified. The grant of this title is extremely rare.
2 An application for first registration must be made within two months of
a disposition triggering first registration.
3 Failure to register has drastic effects. The disposition becomes statutorily
void for the purposes of transferring, granting or creating a legal estate
and the title takes effect in equity only. The title reverts back to the
vendor who holds it on bare trust for the transferee.
4 After first registration, all subsequent transfers of title must be recorded
in the register to take effect at law.
5 Until registration, the vendor holds as trustee and the purchaser has
only an equitable estate in the property.
Z 4.4 Definition of minor interests (called

‘burdens’ on the register under LRA 2002)
1 All interests in registered land that are neither registrable estates/charges
nor interests that override the register take effect in equity and are
known as burdens on the register.
2 These rights were known as minor interests under the LRA 1925.
3 These interests can be protected by an entry on the relevant register of
title of either a notice or a restriction.
4 Once an interest has been protected in this way, subsequent transferees of
the registered freehold or leasehold estate will be bound by such interests.
Definition of minor interests 43
5 Failure to register makes the interest ineffective against a purchaser for

value of any subsequent registered disposition, and it is irrelevant that
the purchaser knows about the interest.

6 The purchaser must check the register before completion to see if there
are any rights affecting the vendor’s land.
7 Where there are two or more interests that have been duly protected by
entries on the same title, the priority of the interests is governed by their
dates of creation and not by the date of registration.
4.4.1 New methods of protection of

minor interests
The LRA 2002 allows only two forms of protection for entries on the register:
notice and restriction.
1 Notices
O Entry of a notice protects an entry against a purchaser of the
registered estate for valuable consideration (notices can be either
consensual or unilateral).
O Entry of a notice does not guarantee the validity of the interest.
O Some interests cannot be protected by notice, e.g. interests under a
trust of land (should be protected by restriction), a lease for not more
than three years and restrictive covenants in leases (cannot be
entered on the register).
O Normally the notice will be an ‘agreed notice’ between the parties.
O A unilateral notice may be entered without the consent of the regis-
tered proprietor although he can apply to the Registrar for its removal
at any time.
2 Restrictions
O These literally ‘restrict’ any dealings with the registered estate or
charge.
O Restrictions under the 2002 Act replaced inhibitions and restrictions
under the 1925 Land Registration Act.
O Restrictions may be entered in respect of a specific type of disposition
(e.g. the need for the consent from a named person before a sale can
take place or all dispositions of the relevant land).
O A restriction is generally used to protect interests behind a trust of land.
O A restriction commonly stipulates that no disposition shall take
place unless the capital monies are paid to two or more people to
ensure that overreaching can apply.
O The registered proprietor need not be asked for permission to register
the right but must be informed as soon as the restriction has been
entered.
4.4.2 Effect of registration of burdens on

the register
1 The actual knowledge of the transferee of any unregistered interest
will generally be irrelevant. ‘It is vital to the working of the Land
Registration system that notice of something which is not on the register
should not affect a transferee unless it is an overriding interest’ (Strand
Securities v Caswell (1965)).
2 Where a disposition is made without valuable consideration, unpro-
tected burdens remain binding on the transferee.
3 The transferee of a registered title who is guilty of fraud may never
disclaim an interest on the ground that it was not entered on the register
at the date of his/her own registration as proprietor.
4 Fraud is not strictly defined but is usually associated with personal
dishonesty. It does not normally include a purchaser who takes advan-
tage of another’s failure to register interests on the register.
5 Mere knowledge of the existence of unprotected rights does not suggest
fraud on the part of the transferee of the registered title.
6 If the transfer is made expressly ‘subject to’ certain rights, then those
rights may be protected under a constructive trust even where such
rights have not been entered on the register. This is because the
parties to the transfer have expressly conferred new rights as a term of
the transfer of the estate in land (Lyus v Prowsa Developments Ltd
[1982]).
7 New rights will only be conferred where there is an express undertaking
or other factors make it unconscionable to deny the right, e.g. a reduc-
tion in purchase price (Binions v Evans [1972]).
8 Personal rights can never be binding on a purchaser (National Provin-
cial Bank v Ainsworth [1965] AC 1175).
4.4.3 Priority between minor interests

(burdens on the register)
1 Where two or more interests have been entered on the register, their
priority is governed by their respective dates of creation.
2 So, an interest may take priority even if it is entered on the register after
registration of the later interest.
Interests that override the register 45
3 Priority may be displaced where there is clear evidence of fraud on behalf

of the owner of the earlier interest.
Z 4.5 Interests that override the register
4.5.1 Definition under the 1925 Act

Section 3(xvi) Land Registration Act 1925: ‘. . . all the incumbrances,
interests, rights and powers not entered on the register but subject to which
registered dispositions are by the Act to take effect’.
4.5.2 Definition under LRA 2002

O Under the LRA 2002, overriding interests are referred to as ‘interests
that override the register’. These rights are listed under Schedule 1 and
Schedule 3 of the LRA 2002.
O Schedule 1 lists all overriding rights that override on the first
registration of the property. These include leases of less than seven
years, rights of persons in actual occupation of land and legal
easements.
O Schedule 3 lists all overriding rights that override on a subsequent regis-
tration of the property. They are almost identical to those rights listed in
Schedule 1 but are slightly more restrictive.
4.5.3 The nature of a right that overrides

the register
1 Rights that override the register or overriding interests do not appear on
the register of title.
2 These rights are a mixed category of rights that will bind if they are listed
under Schedules 1 or 3 of the LRA 2002 even though the transferee may
have no knowledge of their existence.
3 The Law Commission justified their continued existence in the LRA
2002 by saying that it is unreasonable to expect the person who has the
benefit of the right to register it as a means of securing its protection.
(‘Land Registration for the Twenty-First Century’.)
4 These interests can usually be discovered by inspecting the land and
making inquiries of the vendor.
5 Easements should be entered on the register in order to be binding but,

under Schedule 1 para 3 or Schedule 3 para 3, they can constitute inter-
ests that override. Under LRA 2002 equitable easements can no longer
override the register.
6 The most significant category of rights that can override the register
are the rights of every person with an interest in the land and in actual
occupation (Hodgson v Marks [1971]).
7 Occupation without rights in the land and a right in land without actual
occupation cannot constitute a right that can override the register under
Schedule 3 para 2.
4.5.4 Overriding interests under the LRA 2002

1 Overriding interests cause uncertainty because they cannot be discov-
ered by checking the register.
2 The LRA 2002 aimed to create a simplified system of investigation of
title to ensure transparency.
3 The LRA 2002 achieved this in relation to overriding interests in the
following ways:
a) reducing the scope of some overriding interests;
b) providing for the eventual abolition of others;
c) requiring people applying for registration of some rights to provide
information about unregistered interests so that they can be noted
on the register;
d) once an interest has been noted on the register, it loses its overriding
status;
e) abolishing some overriding rights altogether such as rights acquired
under adverse possession and equitable easements.
4 The Act distinguishes between interests that override first registration
(Schedule 1) and interests that override second and subsequent registra-
tion (Schedule 3).
5 Certain interests differ between the two schedules (e.g. the degree
to which rights of those in actual occupation will be binding on a
purchaser).
6 Some interests will retain overriding status indefinitely (e.g. a customary
right, a public right, a local land charge).
7 Some interests will lose their overriding status after 10 years (e.g. a fran-
chise, a manorial right). These will need to be protected by entry on the
Interests that override the register 47
register before 13 October 2013 or they will cease to be binding on

the land.
8 Anyone applying for first registration must give the Registrar informa-
tion about overriding rights affecting the property.
4.5.5 Rights of persons in actual occupation

1 Under the 1925 Act, anyone with a proprietary right in property and
also in actual occupation could claim an overriding interest (e.g. an
estate contract, an option to purchase a freehold interest, an equitable
interest under a trust of land). Such rights remain overriding under LRA
2002.
2 Some rights of persons in actual occupation are incapable of qualifying
as overriding rights:
O Matrimonial rights under the Family Law Act (FLA) 1996 are only
binding if protected on the register. The FLA expressly excludes
them from existing as overriding interests.
O Licences do not constitute qualifying interests, e.g. bare licences
(Strand Securities v Caswell (1965)) and contractual licences (Ashburn
Anstalt v Arnold (1989)), except where specific circumstances arise
that give rise to a constructive trust (Lyus v Prowsa Developments
[1982]).
3 It was assumed in 1925 that there would be no overlap between minor
interests and overriding interests.
4 However, it was held by the House of Lords in Williams & Glyn’s Bank
v Boland [1981] that an interest unprotected by entry on the register
could still take effect as an overriding interest under s 70(1)(g) (now
rights under Schedule 3 para 2).
5 The practical effect of an overriding interest is that it will bind a third-
party purchaser of land unless it is overreached.
6 If the overriding interest is overreached (i.e. transferred from rights
in the land into rights in the capital monies because the purchase
money is paid to two trustees), it will not be binding on the third-party
purchaser (City of London Building Society v Flegg (1988)). The rights
are transferred to the capital monies.
4.5.6 The meaning of actual occupation

1 Actual occupation will vary according to the nature of the land. Differing
standards of ‘actual occupation’ might be relevant to an ordinary
dwelling house fit for habitation and a semi-derelict property that is

undergoing renovation (Lloyds Bank v Rosset (1989); Thomas v
Clydesdale Bank [2010]).

2 Permanent residence need not be claimed in respect of business or
agricultural premises.
3 A temporary absence will not prevent actual occupation so long as there
is evidence of permanent occupation. A woman who had temporarily
left the premises to have a baby in hospital could claim an overriding
interest binding on the purchaser who had purchased her home in her
absence (Chhokar v Chhokar (1984); Link Lending v Bustard [2010]).
4 The mere taking of preparatory steps leading to actual residential occupa-
tion is not sufficient (Abbey National Building Society v Cann [1991]).
5 Minor children living with their parents who had beneficial interests in
property could not be ‘in actual occupation’ (Hypo-Mortgage Services
Ltd v Robinson (1997)).
6 If a person only occupies part of the land, the interest is only protected
for that part (LRA 2002 Sch 3 para 2, reversing Ferrishurst Ltd v Wallcite
Ltd (1999), which had held that occupation of part of a property could
constitute actual occupation of the whole of the property).
7 On a subsequent registration of property, an interest in occupation will
not be overriding if it was not obvious on a reasonably careful inspection
of the property at the time of the disposition and the interest alleged to
be protected was within the ‘actual knowledge’ of the transferee at that
time (Schedule 3 para 2(c)).
4.5.7 The meaning of enquiry

1 Under Schedule 3 para 2(b), the rights of every person in actual occupa-
tion will not constitute an overriding interest if an inquiry was made to
them and they did not disclose their rights when they could reasonably
be expected to do so.
2 Any purchaser has to ensure that the person in actual occupation is
asked what rights he or she has in the land.
3 The rules concerning ‘enquiry’ have changed under the 2002 Act.
4 It is not necessary to make enquiries of the person in actual occupation
on first registration (Schedule 1 para 2).
5 On subsequent registration (Schedule 3 para 2), an interest will not be
protected if inquiry was made of the person claiming it before the dispo-
sition took place and he failed to disclose it when he could reasonably
Alteration and indemnity 49
have been expected to do so. Inquiries of others concerning the exist-

ence of the right will not affect the issue.
6 An overriding right based on actual occupation will still be binding even

it would not have been discoverable on inspection if the purchaser has
actual knowledge of the existence of the right.
4.5.8 Effective date of overriding interests

1 Under the LRA 2002, registrable dispositions are not enforceable until
completed by registration at HM Land Registry.
2 The date of registration is deemed to be the date of lodging the
application for registration.
3 The date for determining the existence of an overriding interest is the
date of registration of the relevant disposition (Abbey National Building
Society v Cann (1991)).
Z 4.6 Rights abolished under LRA 2002

1 Rights acquired or in the course of being acquired under the Limitation
Act 1980 were formerly protected under LRA 1925 but no longer have
the effect of overriding the register.
2 Anyone in receipt of rent and profits can no longer claim overriding
status for his interest.
3 Equitable easements created after the Act do not have overriding status,
although some legal easements are included in both Schedules 1 and 3
and can be overriding.
Z 4.7 Alteration and indemnity
4.7.1 When is alteration of the register

available?
1 Alteration of a registered title is not generally available. It can only be
allowed under statutory authority.
2 An alteration can either be made by the Registrar or the court.
3 An applicant for alteration must establish one or more of the
grounds contained within Land Registration Act 2002 Schedule 4
para 2:
a) correcting a mistake;
b) bringing the register up to date;

c) giving effect to any estate, right or interest excepted from the effect
of registration.
4 A mistake is interpreted broadly. There is a mistake if the facts under-
lying an application are proved to be false (Baxter v Mannion [2011]).
5 Under Schedule 4 para 3, the Registrar can alter the register without a
court order on any of these grounds. He also has power to remove super-
fluous entries. The court has the power to order alteration on the first
three grounds but cannot remove superfluous entries.
6 An alteration is discretionary, not automatic, but where it does not
prejudice another title it will normally be made.
7 An alteration that prejudices a title of a registered proprietor is called
rectification. This is the main ground on which an indemnity can be
claimed.
8 The register may only be rectified against a registered proprietor in
possession in certain circumstances, reflecting the underlying principle
that the register is conclusive.
9 The circumstances in which the register will be rectified against a
registered proprietor in possession are:
O the registered proprietor consents;
O the registered proprietor has caused or substantially contributed
to the mistake because he has been fraudulent or not exercised
sufficient care;
O if it would be unjust not to correct the mistake.
4.7.2 Payment of an indemnity

1 Schedule 8 LRA 2002 allows an indemnity to be paid for loss suffered by
reason of rectification or non-rectification of the register.
2 Rectification is only possible when there is the correction of a mistake
and it would prejudicially affect the title of a registered proprietor.
3 The claimant must establish either that the correction of a mistake has
caused loss, or that the loss had occurred before the register was recti-
fied, or that there has been a mistake that would justify rectification but
it has not been rectified.
4 No right to an indemnity arises if:
Summary of changes to land registration under the 2002 Act 51
O a registered title is rectified to give effect to a subsisting overriding

interest because no loss has been suffered by the rectification;
O the applicant for indemnity has suffered loss wholly or partly in
consequence of his own fraud or lack of proper care;
O it would be unjust for the alteration to be made.
Z 4.8 Summary of changes to land

registration under the 2002 Act
1 The Act extends compulsory registration of title to leases with more
than seven years to run.
2 The methods of protecting burdens on the register or minor interests are
reduced to two: notices and restrictions.
3 Mortgages by demise or sub-demise can no longer be granted over regis-
tered land.
4 Overriding interests have been split into two groups: those that take
effect on first registration and those that take effect on subsequent
registration.
5 The number of overriding interests has been reduced: some will only
apply for a limited time and some have been abolished (e.g. equitable
easements).
6 There is a duty on the registered proprietor to disclose overriding rights
on registration of the property if the right is known.
7 The rules concerning the acquisition of rights under the doctrine of
adverse possession have been changed under the LRA 2002 making it
far more difficult to acquire such rights. Adverse possessory rights are no
longer overriding.
8 All legal easements in place at first registration will override on first
registration but only implied legal easements will override on subsequent
registration.
9 The Act paves the way for the formation of a secure electronic network
within which to carry out e-conveyancing. Electronic conveyancing
will eventually allow for completion and registration to take place
simultaneously.
Key Cases Checklist

4.4.2.8 National Provincial Bank Ltd v Ainsworth

[1965] AC 1175 HL
Key Facts
A husband left his wife and she remained in the matrimonial

home. The property was in the sole name of the husband
and he transferred it to his company; he later took out a
mortgage to the bank in the name of the company. The
issue before the court was the exact nature of the wife’s
rights.
Key Law
Although a deserted wife may have a personal right to

occupy the former matrimonial home, it is not a right
capable of binding a third-party purchaser. It is not a propri-
etary right in land.
The key feature of registered land is the registration of
title at the Land Registry. A number of important statutory
rights can be protected by notice in the charges register of
an individual title. These rights would include restrictive
covenants and equitable easements. Today they also
include matrimonial rights under the Family Law Act 1996,
but such rights were not originally recognised under the
Land Registration Act 1925.
Key Judgment
Lord Wilberforce
‘The wife’s rights, as regards the occupation of her
husband’s property, are essentially of a personal kind:
personal in the sense that a decision can only be reached
on the basis of considerations essentially dependent on the
mutual claims of husband and wife as spouses, and as a
result of a broad weighing of circumstances and merit.’
Key Comment
Several statutes passed after this case, including the

Matrimonial Homes Acts 1967 and 1983 and the Family
Law Act 1996, give effect to the occupational rights of the
spouse who does not own the property at law or in equity,
and allow such rights to be registered as a charge at the
Land Registry. Such rights will only be binding if they are

entered on the register.
4.5.3.6 Hodgson v Marks [1971] Ch 892 CA
Key Facts
Mrs Hodgson took a lodger who persuaded her to transfer

the title of the property to him. She remained in occupation
of the property. The lodger later sold the property to
Mr Marks. It was held that before his transfer to Marks, the
lodger held the property on trust for Mrs Hodgson and
her rights were overriding and binding on the purchaser,
Mr Marks, and subsequently on his estate.
Key Law
In limited circumstances the law has held some rights in

land to be both registrable and overriding. Overriding inter-
ests are rights that bind the registered proprietor although
they are not entered on the register.
Overriding interests were introduced under s 70(1) Land
Registration Act 1925 and covered many rights, in partic-
ular the rights of anyone who had an interest in the land
who was in actual occupation of the property. These inter-
ests continue to be recognised under Sched 1 and 3 of the
LRA 2002.
4.5.5.4 Williams & Glyn’s Bank v Boland [1981]

AC 487 HL
Key Facts
A husband was registered as sole legal owner of the matri-

monial home. The wife had made a financial contribution to
the purchase. She should have registered her rights in
equity as a minor interest but she failed to do so. The court
found that her interest in the property was still protected as
an overriding interest because she had both an equitable
interest in the property and was in actual occupation. If
there had been a second trustee, her rights would have
been overreached, thereby transferring them from the
property into rights in the purchase monies.
4.5.5.6 City of London Building Society v Flegg

[1988] AC 54 HL
Key Facts
The title of property was registered in the name of a man

and his wife, although part of the purchase price had been
paid by the wife’s parents. The legal title was held on trust
by the son-in-law and daughter for themselves and the
parents-in-law. The husband and wife took out a mortgage
and then defaulted on the repayments and the building
society repossessed the property.
Key Law
It was found that although the parents-in-law had an

interest in the land and were in actual occupation, their
interests were overreached. This was because the capital
monies had been transferred to two trustees as required for
overreaching to take effect.
Key Judgment
Lord Oliver
‘Once the beneficiary’s rights have been shifted from the
land to capital monies in the hands of the trustees, there is
no longer an interest in the land to which the occupation
can be referred or which it can protect. If the trustees sell in
accordance with the statutory provisions, so overreaching
the beneficial interests in reference to the land, nothing
remains to which a right of occupation can attach.’
Key Problem
Consider the difference that a second trustee can make to

the rights of the equitable owner. How can the different
approach taken by the law in a case such as Flegg from the
approach taken in a case like Williams & Glyn’s Bank v Boland
be accounted for? Consider s 27 Law of Property Act 1925.
4.5.6.1 Lloyds Bank v Rosset [1989] Ch 350 CA
Key Facts
A house in need of renovation was purchased in the sole

name of the husband, Mr Rosset. The work was started
before completion of the purchase and was shared between

the builders and the wife. The husband took out a mortgage
with Lloyds Bank, unknown to his wife.
The wife claimed an overriding interest in the house, based
on her actual occupation and her equitable interest. She
had difficulty in proving both requirements.
In the Court of Appeal, the wife claimed she was in actual
occupation before the transfer, which would give her rights
priority over the rights of the mortgagees. She claimed that
she had an equitable interest based on her contributions to
the building work.
Key Law
The Court was prepared to find that she was in actual occu-
pation, but on appeal to the House of Lords her claim for a
beneficial interest failed so the issue of actual occupation
was not further discussed.
Key Judgment
Nicholls LJ
‘In my view the presence of a builder engaged by a house-
holder to do work for him in a house is to be regarded as
the presence of the owner when considering whether or not
the owner is in actual occupation.’
Key Link
This case also considered whether the wife had a beneficial

interest in the property. This is considered under construc-
tive trusts in Chapter 5.
4.5.6.1 Thomas v Clydesdale Bank [2010]

EWHC 2755 HC
Key Facts
A couple contributed to the purchase of property registered

in the sole name of the man. Extensive renovation works
were needed in order to make it habitable. The man took
out a mortgage before the couple moved in but after the
builders had started work. It was held that the wife was in
actual occupation from the time the builders started work
on the property.
4.5.6.4 Abbey National v Cann [1991] 1 AC 56

HL
Key Facts
The claimant was the mother of the legal owner of the pro-
perty. She was away on holiday on the day of completion
but her furniture arrived and the removal men started to
move it into the house 35 minutes before completion.
Key Law
The court found that she was not in actual occupation

before completion and so her rights were not binding on
the mortgagees who had provided part of the purchase
monies to the claimant. A claim of an overriding interest
based on actual occupation could only succeed where the
claimant was already in actual occupation of the land at
the disposition. Occupation must be obvious at the time of
disposition.
Have children a separate claim to an overriding

right?
4.5.6.5 Hypo-Mortgage Services v Robinson

[1997] 2 FLR 71 CA
Key Law
Minor children cannot claim to be in actual occupation of

property, independent of their parents, since they are only
there as ‘shadows of occupation’ of their parent.
4.5.6.3 Chhokar v Chhokar [1984] FLR 313 CA
Key Facts
A husband held the registered title of the matrimonial home

on trust for himself and his wife in equal shares. He secretly
agreed to transfer the title to a friend whilst his wife was in
hospital having a baby, and all the locks were changed. The
husband disappeared with the proceeds of sale and when
the wife arrived home from hospital she found that she was
denied access.
Key Law
The court held that she had been in actual occupation in

spite of her temporary absence from the property and so
her rights were binding on the third-party purchaser. The
fact that her possessions remained in the property was
symbolic of her occupation.
4.5.6.3 Link Lending v Bustard [2010] EWCA Civ 424

(also known as Link Lending v Hussain) CA
Key Facts
The claimant had an enforced absence from her property in

which she had an equitable interest because she was
undergoing treatment for a mental condition in hospital.
The court held that she was still in actual occupation
because she always intended to return to the property,
which constituted her permanent home. All her posses-
sions were there and she owned the furniture and other
property that remained there.
4.4.2.6 Lyus v Prowsa Developments Ltd [1982]

1 WLR 1044 HC
Key Facts
A purchaser of property promised to take the land subject

to an unprotected interest. An estate contract had not been
entered on the register before the sale. The subsequent
sale should therefore have defeated the interest.
Key Law
The right was binding on the purchaser although it had not

been registered because the purchase expressly took
subject to the right. The court held that the vendor held the
property subject to a constructive trust in favour of the
claimant.
5 Informal creation of
rights in land
D efinition o f a tru s t
The legal title In property held by
trustees for beneficiaries who hold R esulting tru sts
an equitable title. • X contributes purchase for property
• Express in Y’s name.
• Implied • Can be rebutted by evidence of
Presumption of advancement.
• Usually share is proportionate to
contributions.
INFORMAL CREATION OF
RIGHTS IN LAND
Real and personal property

a) The ‘express bargain’ constructive trust:
i) must be evidence of an actual agreement, but need not be
in writing;
ii) must be some detrimental reliance.
b) The ‘implied bargain’ constructive trust:
i) conduct and mutual dealings;
ii) proof of detriment very strict;
iii) never contributions in kind;
iv) only contributions towards purchase price.
Z 5.1 Implied trusts
5.1.1 The definition of a trust

1 A trust allows ownership in property to be split between legal and
equitable ownership.
Implied trusts 59
2 A trust arises whenever two or more persons have rights in land.

3 The legal title to property is held by one or more persons (the trustees)
but not exceeding four.
4 The beneficiaries are entitled to the equitable title.
5 The trustee holds on behalf of the beneficiaries who take the benefit of
the trust.
6 Trusts are split into two categories:
O the express trust, based on the declared intentions of the parties; and
O the implied trust, either based on the presumed intentions of the
parties or imposed by the court to give effect to informal bargains.
5.1.2 The express trust

1 The settlor asks trustees expressly to hold property on trust for benefici-
aries X and Y on terms named by the settlor.
2 Alternatively, the owner of property declares himself to be trustee of the
land on behalf of X, the beneficiary.
3 The creation of an express trust of land must comply with s 53(1)(b)
LPA 1925, which requires evidence in writing. Without written evidence
the trust is unenforceable.
4 The trustee is under a duty under common law and under the Trustee
Acts 1925 and 2000 to act in the best interests of the beneficiaries and
according to the settlor’s instructions.
5 The beneficiaries have the right to compel the trustees to carry out the
terms of the trust.
6 If the trustee is in breach of his duties, he may be compelled to compen-
sate the trust for any loss suffered.
5.1.3 The implied trust

1 Today, the vast majority of trusts arise by implication.
2 The court will impose an implied trust to give effect to the presumed
intention or informal bargains of the parties.
3 Implied trusts do not require any formalities (LPA 1925 s 53(2)).
4 In some cases, the courts may find an implied trust where the formalities
of an express trust have not been fully complied with by the parties.
5 There are two types of implied trust:
60 Informal creation of rights in land
O the resulting trust; and

O the constructive trust.
Z 5.2 Resulting trusts
5.2.1 Definition of a resulting trust

1 A money contribution towards the purchase of a legal estate in the
name of another will create the presumption of a resulting trust. For
example:
a) X provides £400,000 for the purchase of Whiteacre in Y’s name. Y
holds on resulting trust for X.
b) X and Y each provide £200,000 for the purchase of Blackacre in the
name of Y. Y holds on resulting trust for X and Y.
2 A resulting trust arises because the law is giving effect to the presumed
intentions of the parties (Dyer v Dyer [1788]).
3 A resulting trust can arise where the parties are unaware that a trust has
been imposed.
4 The presumption of a resulting trust can be rebutted by evidence that
the money was meant as a gift or a loan, or there is a presumption of
advancement.
5 In some circumstances, the relationship of the parties would allow the
law to presume that a gift was intended.
6 A gift was presumed between father and child, but not mother and child,
and a gift was presumed between husband and wife. The presumption of
advancement was abolished by s 199 Equality Act 2010 but there has
been a delay in bringing the section into force. The presumption will
continue to apply to any transfer made before the section has come into
effect.
5.2.2 The operation of resulting trusts

1 A resulting trust can be implied where there is a direct cash contribution
to the purchase price (Cowcher v Cowcher (1972)).
2 If two or more contribute to the purchase price, it is presumed that their
shares will be proportionate to their contributions.
3 However, the court can order shares that are not directly proportionate
to their contributions (Midland Bank v Cooke (1995)).
Constructive trusts 61
4 A contribution to the purchase can be the exercise of the ‘right to buy’

under the Housing Act 1985. The share will represent the reduction in
purchase price awarded to the qualifying tenant (Springette v Defoe

(1992)).
5 A resulting trust can arise based on contributions to mortgage repay-
ments after the initial purchase of the property (Gissing v Gissing
(1971)) although this was doubted later in Curley v Parkes
[2004].
6 Contributions to the general household expenses will not be sufficient to
establish a resulting trust: ‘the fact that parties live together and do the
ordinary domestic tasks is . . . no indication at all that they . . . intended
to alter the existing property rights of either of them’ (Burns v Burns
(1984)).
7 Resulting trusts are rarely used to determine property rights today
(Abbott v Abbott [2008]). It is confined to cases where the parties have
purchased property as an investment or a business venture (Laskar v
Laskar (2008)).
8 A resulting trust will not arise where it is based on an illegal motive but
where an illegal motive is present and the presumption can be applied
without relying on the illegal motive, the resulting trust will be upheld
(Tinsley v Milligan [1993]).
Z 5.3 Constructive trusts
5.3.1 The definition of a constructive trust

1 The constructive trust covers a variety of situations, but in land law
it is imposed where ‘the trustee has so conducted himself that it would
be inequitable to allow him to deny to the beneficiary a beneficial
interest in the land acquired’ (Lord Diplock in Gissing v Gissing
(1971)).
2 Lord Bridge laid down in Lloyds Bank plc v Rosset (1991) that there are
two situations giving rise to a constructive trust:
O The express bargain constructive trust arises when:
a) there is an agreement or understanding between the legal owner
and the non-legal owner to share the equitable interest; and
b) the non-legal owner relied on that agreement and acted to his
detriment.
O The implied bargain constructive trust arises when:
a) the court considers the conduct of the parties and from that
conduct it infers a common intention to share the equitable
interest;
b) the court must establish that the non-legal owner has
made contributions towards the purchase price (must be direct
contributions).
3 The non-legal owner acquires an equitable interest in the land under
constructive trust.
5.3.2 The ‘express bargain constructive trust’:

the agreement
1 There must be evidence of an actual agreement between the legal estate
owner X to share the property beneficially with Y (Lord Bridge in Lloyds
Bank v Rosset (1991)).
2 Unlike resulting trusts (where evidence of intention must be present at
the initial purchase), it is possible to find evidence of a constructive trust
at any time.
3 There must be clear evidence of an express discussion even if the terms
were imprecise in legal terms (Eves v Eves (1975); Grant v Edwards
(1986)).
4 If there is evidence of an oral discussion, the constructive trust can be
upheld by a court. The constructive trust does not require written
evidence.
5 The rights conferred on Y will give rise to an equitable interest in the
property.
6 The express agreement must be supported by some change in position or
detriment, which can be contributions in kind.
5.3.3 The detrimental reliance

1 There must be evidence of detrimental reliance.
2 This is a change of position by Y in reliance on the promise by X.
3 The change in position must be connected with the property, e.g. money
and time spent on renovating property by Y in the belief that he/she will
acquire a share (Eves v Eves (1975)).
4 The court will not award a share based on time spent on the property out
of affection or where the contributions are not directly connected to the
property itself, as in Burns v Burns (1984).
5 An earlier payment or compensation for the contribution cannot consti-

tute detrimental reliance, e.g. in Layton v Martin (1986) where previ-
ously paid domestic duties could not be considered as detrimental

reliance in order to acquire a share in the property.
5.3.4 The ‘implied bargain constructive trust’

1 The ‘implied bargain constructive trust’ depends on the conduct and
mutual dealings of the parties.
2 According to Lord Bridge in Lloyds Bank v Rosset (1991), proof of
detriment under an implied bargain constructive trust must be much
stricter than under an express bargain constructive trust.
3 Only direct contributions to the purchase price will be sufficient. These
can include contributions to the mortgage instalments.
4 Contributions in kind, e.g. work on the property (Lloyd’s Bank v Rosset
(1991)) or shared household expenses (Burns v Burns (1984)) will
never be enough.
5 The change of position must strictly be referable to the acquisition of a
beneficial interest in the property (Gissing v Gissing (1971)).
6 The courts may have to distinguish on the facts between a resulting and
a constructive trust.
7 In Drake v Whipp (1995), the court distinguished between a
resulting and a constructive trust by looking at the intentions of the
parties.
8 A constructive trust can arise some years after the property has been
acquired by and registered in the sole name of one party but, if there is
no express agreement, the court will be slow to infer an agreement
(James v Thomas (2007)).
5.3.5 Assessing the shares of the parties

under a constructive trust
1 The award of the shares will try to reflect what the parties intended.
2 If the parties have expressly agreed the shares in the property then this
will be upheld.
3 If the parties have not addressed the issues of size of shares then the
court will try to reflect what the parties might have intended by looking
at the way they treated their finances together (Midland Bank v Cooke
(1995)).
4 Waite LJ laid down the principle in Midland Bank v Cooke (1995) that
the court must consider the whole course of dealing between the parties
in their finances.
5 In Oxley v Hiscock (2005), the court thought that the whole course of
dealing was relevant although the court could award what it deemed to
be ‘fair’.
6 In Stack v Dowden (2007), the House of Lords rejected the discretion
of the court in assessing shares on the basis of what is ‘fair’.
7 Where the parties jointly own the property at law, there is a presumption
that ‘equity follows the law’, which will result in equal division of the
beneficial interest in the property; this can be rebutted with evidence
that the parties intended otherwise (Stack v Dowden (2007)).
8 The court should ‘undertake a survey of the whole course of dealing
between the parties and taking into account of all conduct which throws
light on the question what shares were intended’ (Baroness Hale in
Stack v Dowden (2007)).
9 In Jones v Kernott [2011], the House of Lords held that where the
express intention of the parties as to the size of the shares in the benefi-
cial estate is unknown, intention can be inferred or imputed from the
facts.
5.3.6 The effect of Stack v Dowden and

Jones v Kernott on the implied
constructive trusts
1 Although Stack v Dowden and Jones v Kernott concerned a couple
who owned property jointly at law, it has been applied to cases where
property is in sole ownership.
2 Although strictly obiter, Stack v Dowden and Kernott v Jones have been
used for the acquisition stage in constructive trusts. It allows the court
to infer a common intention to share the beneficial interest from the
entire course of conduct. Under these cases, a claim to a share in the
beneficial interest is not restricted to proof of capital contributions
(Geary v Rankine [2012]; CPS v Piper (2011)).
5.3.7 The future for constructive trusts

1 The constructive trust in the UK (the institutional constructive trust)
has many limitations that can work unfairly for the parties.
2 Other jurisdictions have adopted a fairer approach, recognising the

‘remedial constructive trust’.
3 The court has greater discretion in these cases and is not restricted to
giving effect to the parties’ intentions. The court usually tries to remedy
any ‘unjust enrichment’.
4 Canada has developed the doctrine in a number of cases (e.g. Pettkus v
Becker (1980) and Sorochan v Sorochan (1986)) where a share of the
property was awarded based on domestic and household services.
5 This was echoed in New Zealand (Gillies v Keogh (1989)) where the
courts gave effect to the reasonable expectations of the parties.
6 The UK briefly recognised the doctrine in the 1970s (Cooke v Head
(1972)), but later returned to the stricter property principles of the insti-
tutional constructive trust.
7 The Law Commission has addressed the problem of financial support for
cohabitants and the difficulties in relying on implied trusts to establish
rights.
8 In 2007, the Law Commission published a report Cohabitation: The
Financial Consequences of Relationship Breakdown. It proposes a scheme
that gives certain cohabitants the right, on separation, to apply for
various kinds of financial relief. If this was adopted, the role of construc-
tive trusts would be reduced in determining the property rights of a
cohabiting couple.
Key Cases Checklist

RESULTING TRUSTS '

PRESUMPTION OF A RESULTING TRUST
Dyer V Dyer (1788)
A trust of a legal estate will result to the person advancing the purchase
money
Gissing V Gissing (1971)
A resulting trust will arise If contributions are made to the purchase of
property. Improvements to property do not constitute contributions
Laskar v Laskar (2008)
The presumption of joint ownership would not apply If property was
purchased as an Investment even If the owners were members of the
same family. It was more appropriate to find a resulting trust and to
apportion shares according to the value of each contribution.
CONSTRUCTIVE TRUSTS
DEFINITION
Gissing V Gissing (1971)
A constructive trust arises where there Is evidence of a common
Intention to share the beneficial Interest In the property
EVIDENCE OF A COMMON INTENTION
Eves V Eves (1975); Grant v Edwards (1986)
Evidence of a common Intention can either be express or Implied
Burns V Bums (1984)
Without evidence of a common Intention, contributions In kind will not
support a constructive trust
Lloyds Bank v Rosset (1991)
Indirect contributions cannot support a constructive trust unless there Is
a common Intention to share
ASSESSING THE SHARE IN RESULTING and CONSTRUCTIVE
TRUSTS
Midland Bank pic v Cooke (1995)
Evidence of shared finances throughout a marriage showed an Intention
to share property equally In spite of a 7% contribution to the purchase
price
Drake V Whipp (1996)
A joint bank account and contributions to family expenses were
evidence of an Intention to share the family home
Oxley V Hiscock (2004)
Quantification of shares In property under all implied trusts should be
based on fairness rather than purely size of contributions
Stack V Dowden (2007); Jones v Kernott (2011)
Where the legal title is held jointly it is presumed that the equitable
interest will be held jointly based on the maxim ‘equity follows the law’.
This presumption can be rebutted by contrary evidence
5.2.1.2 Dyer v Dyer (1788) 2 Cox Eq Cas 92

HC
Key Judgment
Eyre CB
‘A trust of a legal estate . . . whether taken in the names of
the purchasers and others jointly, or in the names of others
without that of the purchaser; whether in one name or
several; whether jointly or successive, results to the man
who advances the purchase money.’
5.2.2.5 Gissing v Gissing [1971] AC 886 HL
Key Facts
On divorce, a wife claimed a share in the matrimonial home

solely owned by her husband. Over the 30-year marriage
she had made a number of contributions in kind, such as
the purchase of furniture and household equipment, and
contributions towards improvements carried out in the
house. The Court of Appeal found in her favour but the
House of Lords held that she could not claim an equitable
interest.
Key Law
Lord Pearson reconsidered the issue of when a resulting

trust will arise and suggested that the reason a resulting
trust is presumed is because it gives effect to the intentions
of the parties at the time when the contributions were
made. However, the presumption is a rebuttable presump-
tion and it can be rebutted by evidence showing some
other intention.
Key Judgment
Lord Diplock
‘A resulting, implied or constructive trust – and it is unnec-
essary for the present purposes to distinguish between
these three classes of trust – created by a transaction
between the trustee and the beneficiary in connection with
the acquisition by the trustee of a legal estate in land,
whenever the trustee has so conducted himself that it
would be inequitable to allow him to deny to the beneficiary
a beneficial interest in the land acquired.’
Key Link
This case also raised issues relating to constructive trusts

and is reconsidered in detail below.
5.2.2.7 Laskar v Laskar [2008] 1 WLR 2695 CA
Key Facts
A mother and daughter purchased property in joint names

as an investment. The mother was solely responsible for
the property and for the mortgage repayments. The rela-
tionship between the mother and her daughter broke down
and the daughter sought an order declaring that she had a
half share in the property.
Key Law
Since the purchase of the property was nothing more than

a business venture, the relationship was one between
investors and the presumption of joint ownership did
not apply in such circumstances, even where the parties
were members of the same family. This was a resulting
trust and each party was entitled to the value of her own
contribution.
5.2.2.8 Tinsley v Milligan [1994] 1 AC 340 HL
Key Facts
Miss T and Miss M were lovers and together they jointly

contributed to the purchase of property. The title was
placed in T’s name alone in order to allow M to claim social
security benefits – in particular housing benefit. After an
argument, the relationship ended and T maintained that M
did not have an interest in the property. She argued that the
presumption of a resulting trust was rebutted by the illegal
motive.
Key Law
Although two members of the House of Lords held that

the illegal motive prevented M from claiming a share, the
majority upheld her claim. They based this on the fact
that M could assert ownership without relying on the illegal

motive but instead relying on the resulting trust that arose

in her favour.
Key Judgment
Lord Browne-Wilkinson
‘Where the presumption of resulting trust applies, the
plaintiff does not have to rely on the illegality. If he proves
that the property is vested in the defendant alone but the
plaintiff provided part of the purchase money, or voluntarily
transferred the property to the defendant, the plaintiff
establishes his claim under a resulting trust unless either
the contrary presumption of advancement displaces the
presumption of resulting trust or the defendant leads
evidence to rebut the presumption of resulting trust.’
Key Comment
The formal transfer of rights in land usually involves certain

formalities such as the need to satisfy s 2 LP(MP)A 1989
but in some cases an implied trust will be imposed in order
to give effect to the intentions of the parties, and which
does not require any formalities.
Recent cases such as Stack v Dowden [2007] (jointly owned
property) and Abbott v Abbott [2008] (solely owned prop-
erty) have held that where co-owned property is held in a
sole name, the interests behind the trust will be held on
constructive trust and it is for the court to decide the shares
of the parties based on their imputed intentions.
5.2.2.7 Abbott v Abbott [2007] UKPC 53 PC
Key Facts
Land was transferred from the husband’s mother to a

couple soon after their marriage but it was registered in the
sole name of the husband. The mother also contributed
towards the construction costs although both the husband
and wife were liable for the mortgage. After the relationship
broke down, the husband claimed that it was held on
resulting trust thereby giving the wife a share of less than
10 per cent. The court found that it was held on construc-
tive trust for both husband and the wife.
5.2.2.5
Gissing v Gissing [1971] AC 886 (above) HL
Key Facts
A couple separated after nearly 30 years of marriage. The

husband had purchased a house nine years earlier, using
partly his own money and partly a loan from his wife’s
employer, but mainly with the aid of a mortgage. The wife
made a number of contributions towards living expenses.
In particular, she paid for a new lawn to be laid and also for
some items of furniture as well as purchasing clothes for
the family and paying towards housekeeping costs. On this
basis, she claimed she had a beneficial interest and the
husband held the property on constructive trust for them
both.
Key Law
The House of Lords held that she had no interest in the

property. They could find no evidence of a common inten-
tion that the wife was to be entitled to a share of the house.
Key Judgment
Lord Diplock
‘The picture presented by the evidence is one of husband
and wife retaining their separate proprietary interests in the
property, whether real or personal, purchased with their
separate savings and is inconsistent with any common
intention at the time of the purchase of the matrimonial home
that the wife, who neither then nor thereafter contributed
anything to its purchase price or assumed any liability for it,
should nevertheless be entitled to a beneficial interest in it.’
5.3.2.3 Eves v Eves [1975] 1 WLR 1338 CA
Key Facts
An unmarried couple started living together. The man

purchased a house in his sole name, telling the woman,
who was aged 19 at the time, that he would have put the
house into joint names if she had been 21. He later admitted
that this assertion was untrue. However, the court inferred
an agreement that the woman was to have an interest in the
property. The woman had carried out extensive work on the

property, including breaking up a concrete surface with a

large sledgehammer; she painted the brickwork in front of
the house and demolished a shed with the man and put up
a new one in its place. He later left her for another woman
and she claimed a share in the house.
Key Law
The Court of Appeal held that the man held the title on
constructive trust for himself and the woman. If there is a
bargain between the parties, either expressly or impliedly,
that the claimant is to have a share in the property on
account of contributions in kind, then the court will give
effect to this agreement.
5.3.2.3 Grant v Edwards [1986] Ch 638 CA
Key Facts
A man and a married woman whose marriage had broken

down started to live together. The man purchased a prop-
erty and told the woman that he would not put her name on
the title deeds because it could prejudice the financial
settlement between herself and her husband.
Key Law
From these facts the Court of Appeal inferred an express

common intention to share the beneficial interest. The man
had paid the mortgage instalments but the woman made
contributions towards housekeeping expenses and caring
for the children.
Key Judgment
Nourse LJ
‘The more difficult question is whether there was conduct on
her part which amounted to an acting upon that intention . . .
it is in my view an inevitable inference that the very substantial
contribution which the plaintiff made out of her earnings . . .
to the housekeeping and to the feeding and to the bringing up
of the children enabled the defendant to keep down the
instalments payable under both mortgages out of his income.’
5.2.2.6 Burns v Burns [1984] Ch 371

CA
Key Facts
An unmarried couple lived together for over 19 years. The

family home was bought in the sole name of the man. The
woman made no direct capital contributions to the purchase
of the property. They had two children and she stayed at
home to care for them. She only worked when the children
were older but her earnings were not used towards the
purchase of the property. Instead, her earnings were spent
on household bills, redecorating the house (which she
carried out herself), and buying clothes for the children. The
Court of Appeal could find no common intention that she
was to derive a share in the property.
Key Judgment
May LJ
‘When the house is taken in the man’s name alone, if the
woman makes no “real” or “substantial” financial contribu-
tion towards either the purchase price, deposit or mortgage
instalments by the means of which the family home was
acquired, then she is not entitled to any share in the benefi-
cial interest in that home even though, over a very substan-
tial number of years, she may have worked just as hard as
the man in maintaining the family in the sense of keeping
the house, giving birth to, looking after and helping to bring
up the children of the union.’
Key Law
This case reaffirms the principle that rights in property are

dependent on a common intention to share and contribu-
tions towards family and general household expenses
alone are insufficient to infer such an intention.
5.3.1.2 Lloyds Bank v Rosset [1991] 1 AC 107 (above) HL
Key Facts
A couple purchased a derelict property that required exten-

sive redecoration. Mrs Rosset supervised this work and
spent a considerable amount of her time at the property.
She undertook aspects of the redecoration herself. The

marriage broke down and she claimed a share of the prop-

erty based on the work that she had undertaken.
Key Law
The court refused to grant her rights in the property based

on her work because it could find no evidence of a common
intention to share rights in the property.
Key Judgment
Lord Bridge
‘There must have been some agreement, arrangement or
understanding reached between them that the property is to
be shared beneficially. It was common ground that Mrs
Rosset was extremely anxious that the new matrimonial
home should be ready for occupation before Christmas if
possible. In these circumstances it would seem the most
natural thing in the world for any wife, in the absence of her
husband abroad, to spend all the time she could spare and to
employ any skills she might have, such as the ability to deco-
rate a room, in doing all she could to accelerate progress of
the work, quite irrespective of any expectation she might
have of enjoying a beneficial interest in the property.
. . . The finding of an agreement or arrangement to share
. . . can only be based on evidence of express discussions
between the parties, however imperfectly remembered and
however imprecise their terms may have been.
. . . In this situation direct contributions to the purchase
price by the partner who is not the legal owner, whether
initially or by payment of mortgage instalments, will readily
justify the inference necessary to the creation of a construc-
tive trust. But, as I read the authorities, it is at least extremely
doubtful whether anything less will do.’
As can be seen, the courts have not always been prepared

to find evidence of a common intention and any claim
based solely on contributions in kind will be unsuccessful in
spite of criticism from academics and lawyers alike. This
can be particularly difficult for a claimant who is a cohabitant
and who cannot make a claim for a share in the
family home under the Matrimonial Causes Act 1973. The
Law Commission has addressed the problems of financial
support of cohabitants and, in 2007, published a report:
‘Cohabitation: The Financial Consequences of Relationship
Breakdown’. This report has proposed a scheme that
gives certain cohabitants the right, on separation, to apply

for various kinds of financial relief including a lump sum,

property transfer and property settlements. If such a scheme
were to be adopted, the role of constructive trusts would be
reduced in determining the property rights of a cohabiting
couple.
5.2.2.3 Midland Bank plc v Cooke [1995] 4 All ER 562 CA
Key Facts
The parties had been married for nearly 25 years. The

house had been purchased in the sole name of the
husband but the court found that the wife had contributed
7 per cent towards the purchase price based on her
share of the initial deposit paid by her parents-in-law as a
joint wedding present. The court had to assess the size of
her share. Throughout their marriage they had shared
finances and the court took this to infer an intention to
share the property equally, so the wife was awarded a
50 per cent share in the property based on the initial
contribution of 7 per cent.
Key Law
In a resulting trust, the courts traditionally quantify the

shares according to the size of the initial contributions. By
contrast, in a constructive trust the courts determine the
shares according to any express agreement or by inferring
intention from the conduct of the parties. In this case it was
admitted in court by the claimant that there had been no
agreement about ownership of the property but this did not
affect the wife’s claim. The court was prepared to infer such
an intention.
Key Judgment
Waite LJ
‘It would be anomalous . . . to create a range of home-
buyers who were beyond the pale of equity’s assistance in
formulating a fair presumed basis for sharing of beneficial
title, simply because they had been honest enough to admit
that they never gave ownership a thought or reached any
agreement about it.’
5.3.4.7 Drake v Whipp [1996] 1 FLR 826

CA
Key Facts
A couple purchased a barn, intending to convert it into a

house. It was purchased in the man’s sole name and he
paid the majority of the costs of the conversion. The woman
paid towards the purchase price. This represented about
40 per cent of the purchase price but only 20 per cent of the
purchase price and conversion costs combined.
Key Law
The court found this to be a constructive trust because

there was a common understanding between the parties
that they were to share beneficially. The court could then
look at all relevant factors and found that the woman should
be entitled to a one-third share. This was based on such
factors as their joint bank account and the contributions
made to general family expenses, and that they intended to
share the family home.
5.3.5.5 Oxley v Hiscock [2004] EWCA Civ 546 CA
Key Facts
An unmarried couple purchased a property to provide

themselves with a home. The property was purchased in
the sole name of Mr Hiscock but the purchase price was
provided in part by Mrs Oxley, in part by Mr Hiscock and in
part by way of a mortgage. The court found that Mr Hiscock
held on constructive trust for Mrs Oxley based on their
common intention to share. Although there had been initial
contributions that would suggest a resulting trust, the court
looked at this as a constructive trust and applied a broader
approach to quantification of shares.
Key Law
The court then reconsidered how courts in all implied trusts

will quantify shares. It decided that shares in implied trusts
should be based on fairness: ‘That share which the court
considers fair having regard to the whole course of dealing
between them in relation to the property.’ The course of
dealing would involve looking at such things as contributions
to expenses such as housekeeping, utilities and repairs.

When these much broader factors were applied, the claimant

Mrs Oxley was awarded 40 per cent of the property.
Key Comment
This case suggests that quantification of shares has moved

away from the strict approach in resulting trusts based
purely on the size of contributions. Today, the court will
look at the whole course of dealing, even in a case based
on a resulting trust.
5.3.5.6 Stack v Dowden [2007] 2 AC 432 HL
Key Facts
Property was purchased in the names of two cohabitants,

Ms Dowden and Mr Stack. The title was registered in joint
names but they did not indicate on registration whether
they wished to hold the beneficial interest as joint tenants
or tenants in common. The parties had made unequal
contributions towards the purchase price, which was also
funded by a mortgage. Ms Dowden had contributed 65 per
cent of the purchase price and Mr Stack had contributed 35
per cent. When the couple split up, the woman claimed a
larger share of the property. Since the parties had kept their
finances rigidly separate and Ms Dowden had contributed
much more to the purchase than Mr Stack, the presump-
tion of equality was rebutted.
Key Law
It was not appropriate to apply a resulting trust to cases of

property ownership between husband and wife and cohab-
itant and cohabitant, and it was preferable to apply a
constructive trust in such circumstances.
Baroness Hale held that common intention can readily be
implied from the sheer fact of joint legal ownership. In such
cases, ‘equity follows the law’ and equity is equality so the
law will presume that the beneficial interest will be shared
equally. However, this presumption is rebuttable by proof
that a contrary inference is to be drawn. The factors
that would be proof of a contrary indication could include the
reasons why the home was purchased in joint names,
the nature of the relationship, the financing of the purchase,
the discharge of various finances and other factors.
Key Judgment
Baroness Hale
‘. . . when a couple are joint owners of the home and jointly
liable for the mortgage, the inferences to be drawn from
who pays for what may be very different from the infer-
ences to be drawn when only one is owner of the home.
The arithmetical calculation of how much was paid by each
is also likely to be less important. It will be easier to draw
the inference that they intended that each should contribute
as much to the household as they reasonably could and
that they would share the eventual benefit or burden
equally . . .’
Key Comment
In a dissenting judgment, Lord Neuberger sought to

uphold the presumption of the resulting trust in deciding
shares in a jointly owned property but this presumption
could be displaced by evidence of a constructive trust if
there was evidence of an agreement supported by detri-
mental reliance at the time of acquisition. He suggested
that such evidence must be substantial such as capital
repayments to the mortgage or substantial improvements
to the home.
Key Link
This case is considered later under co-ownership. Where

co-owned property is registered at the Land Registry, the
parties may declare their ownership of the equitable estate.
This declaration is optional and where the parties have
chosen to remain silent on this matter, the court may infer
the nature of the beneficial ownership from circumstances.
5.3.5.9 Jones v Kernott (2011) SC
Key Facts
This case concerned a couple, Mr Kernott and Ms Jones,

who jointly purchased property in 1985. Ms Jones made
a capital contribution of £6,000 and the remainder was
raised through a mortgage. Ms Jones paid the outgoings
whilst Mr Kernott contributed towards the mortgage. In
1993, the couple split up and Mr Kernott moved out. He then
ceased to make any contributions towards the property. In
2006, 13 years after the couple had split up, he claimed a

half share in the property.

It was accepted by the court that when Mr Kernott moved
out, he was entitled to a 50 per cent share in the property.
However, the courts disagreed as to whether he should
receive a half share or a reduced share because he had
ceased to contribute towards the purchase of the property
after he had left. The county court judge held that once Mr
Kernott had left, the intentions of the parties had changed
and his share should be reduced to 10 per cent.
The Court of Appeal followed Stack v Dowden and held that
unless there was evidence to the contrary, ‘equity should
follow the law’ and the shares should be equal. The
Supreme Court reinstated the county court decision and
awarded Ms Jones 90 per cent and Mr Kernott 10 per cent.
The court held that common intention is either to be objec-
tively deduced (inferred) from the conduct or it can be
imputed by the court, having regard to the whole course of
conduct.
Key Comment
Although the Supreme Court made it clear that its primary

aim is to ascertain the actual intentions of the parties,
whether expressed or inferred, if it is not possible to do so
then the court ‘is driven to impute an intention which the
parties may never have had’. It suggests that in cases
where intention of the parties is not known, the court can
still make what it believes is a fair decision.
6 Proprietary
estoppel
D efinition
X assures Y of future rights in land and Y relies on the
assurance and acts to his detriment.
The representation Reliance Detrim ent

• Must relate to • Claimant must show • The representee
present or future a change of position must be shown to be
rights in land. in reliance on the unconscionably
• Promises must be promise. disadvantaged by
clear and • The change of relying on the
unequivocal but position can be promise.
can be made by quantified in money • There may be bars
silence. terms or to a claim if the
• Promises of rights contributions of claimant did not act
under a will cannot labour but must not equitably i.e. with
be relied on unless be inconvenience or ‘clean’ hands.
they are clear and altered lifestyle.
have been relied on • The detriment may
by the claimant be suffered by
over a long period someone other than
of time. the claimant.
Nature o f the rig h ts arising

• Entitles the claimant to equitable relief.
• The right can be entered on the register under s 116 LRA 2002; can be an
overriding interest.
• Can be binding on third parties.
V
Z 6.1 Definition of proprietary estoppel

1 X, the owner of land, expressly or impliedly gives an assurance to Y
respecting present or future rights in land, and Y relies on that assur-
ance, acting to his detriment.
80 Proprietary estoppel
2 Proprietary estoppel used to depend on the proof of five probanda under

Willmot v Barber (1880):
a) claimant of an equity makes a mistake about his/her legal rights;

b) on the basis of the mistake, the claimant acts to his/her detriment by
spending money or carrying out some act;
c) knowledge of the landowner as to the other party’s belief;
d) knowledge of the landowner that the belief is mistaken;
e) the landowner must have encouraged the claimant in the expendi-
ture incurred.
3 The Willmot v Barber probanda were replaced by Oliver J in Taylor Fash-
ions Ltd v Liverpool Trustees Co Ltd [1982] with three elements:
O a representation (or assurance of rights);
O reliance (or a change of position);
O detriment (or unconscionable conduct).
4 The most important question to ask in proprietary estoppel is whether
it would be unconscionable for a landowner to deny a right to the
claimant where he has allowed or encouraged another to assume to his
detriment’ (Taylor Fashions Ltd v Liverpool Trustees Co Ltd (1982),
Oliver J).
Z 6.2 The representation

1 The representation, promise or assurance must relate to a present or
future interest in land of the promisor (Inwards v Baker [1965]). A
representation may be made expressly or impliedly (Ramsden v Dyson
(1866)).
2 The representation need not be made in terms of a specific type of
interest (e.g. an equitable estate), merely a general interest in land.
3 Representation must be clear and unequivocal (Pascoe v Turner
[1979]). Claims will be rejected if they are simply gratuitous promises or
are excessively vague. A promise made in general terms, such as ‘this will
be for my death duties’ as in Thorner v Major [2009], was acceptable as
the context in which it was said constituted an implied assurance of
rights in property.
4 Whether a representation is clear and unequivocal will depend on the
context of the assurance (Thorner v Major [2009]). Proprietary estoppel
can be upheld where there is a continuing pattern of conduct over a
significant period of time (Thorner v Major (2009)).
Reliance 81
5 Promises made in respect of gifts under a will are enforceable because

although the testator can always revoke the will before death, the claim-
ant’s right will crystallise into a property right as soon as the claimant
has acted to his/her detriment (Gillett v Holt (2001)).
6 A claim to rights is usually upheld where the testator’s promises are very
clear, made in front of witnesses and have been relied on by the claimant
over a long period of time (Gillett v Holt (2001)).
7 A representation can be made by silence. The owner does not have to be
aware of the specific act of reliance by the claimant (Crabb v Arun DC
(1976)). Mere delay by the representor in acting on a trespass or a
breach by the representee will not confer rights.
8 An oral agreement for the purchase of land that does not satisfy s 2(1)
Law of Property (Miscellaneous Provisions) Act 1989 cannot usually
generate a proprietary estoppel claim (Yeoman’s Row Management v
Cobbe (2008)).
9 Proprietary estoppel may be invoked in non-commercial agreements
for the purchase of property where unconscionability can be proved
(Whittaker v Kinnear [2011] EWHC 1479 QB).
Z 6.3 Reliance
1 The claimant must show that he has changed his position in reliance
on the representation made by the owner of the land (Re Basham
(1986)).
2 There must also be a causal link between the representation and the
change of position (Gillett v Holt (2001)).
3 The claimant need not have altered his position exclusively in reliance
on the representation.
4 The change of position can either be quantified in financial or non-
financial terms or in contributions of labour (Greasley v Cooke (1980))
or abandoning a job in order to come and live with or near the
representor.
5 The detriment may be suffered by someone other than the claimant, e.g.
the claimant’s husband as in Re Basham (1986).
6 Inconvenience or altered lifestyle will not represent detriment or change
of position (Coombes v Smith (1986)).
7 The burden of proof lies with the claimant to show that the representa-
tion has been made and, as a result, he altered his position (Greasley v
Cooke (1980)).
8 Once a representation has been made and the claimant has shown that
he altered his position, inferring that he acted in reliance on the promise,
the burden of proof shifts to the landowner to show that there was no
reliance on the promise (Greasley v Cooke (1980)).
9 There will be no reliance only when it can be shown that the claimant
would have incurred detriment completely irrespective of the defend-
ant’s conduct. The fact that other matters influenced the claimant will
not defeat a claim (Wayling v Jones (1993)).
Z 6.4 Detriment
1 The representee must be shown to be unconscionably disadvantaged by
relying on the representation.
2 In recent cases, the courts generally seek proof of both detrimental
reliance by the claimant and proof that the landowner is acting uncon-
scionably in seeking to enforce his strict legal rights (Gillett v Holt
(2001)).
3 Detriment may take any form so long as it is not minimal or trivial. It
may take the form of improvements to the land but detriment need not
relate to the land at all: it could be support or assistance given to the
landowner.
4 Detriment can arise in cases where the claimant has derived some
benefit from the landowner (Gillett v Holt (2001)).
Z 6.5 Nature of the rights arising under

proprietary estoppel
1 Proprietary estoppel entitles the claimant to equitable relief. This should
fulfil the realistic expectations of the claimant.
2 Under s 116 Land Registration Act 2002, the right can be entered on
the register and will take effect from the time when the claimant acted
to his/her detriment.
3 Once the right takes effect, it is capable of binding third parties.
4 It is also capable of taking effect as an overriding interest where the
claimant is in occupation of the property.
Remedies in estoppel 83
Z 6.6 Remedies in estoppel

1 The court must look at the circumstances in each case to decide in what
way the equity can be satisfied.
2 The court has a very wide discretion in remedies it is prepared to award
(Crabb v Arun DC (1976): ‘Here equity is displayed at its most flexible’
(Denning MR).
3 Estoppel can be used as a sword and a shield, i.e. it can found a cause of
action as well as defending a cause of action.
4 Jennings v Rice (2003) establishes that in estoppel cases the court is
seeking to preserve proportionality between the representation made,
the detriment incurred by the claimant and the remedy awarded. This
will also take into account any benefit that the claimant may have
received from the representor.
5 Misconduct by the claimant after the remedy has been granted will not
affect the claimant’s rights (Williams v Staite [1979]).
6 Under equitable principles there may be bars to relief, e.g. delay or ‘lack
of clean hands’, both of which will prevent a successful claim.
The grant of a legal

estate in land -
Pascoe V Turner
(1979), Re Basham
(1986).
Compensation and The grant of a right

the right to occupy Some of the to occupy - Inwards
under a trust - remedies granted v Baker 965),
Hussey V Palmer in estoppel cases Greasley V Cooke
(1972). (1980).
ґ 4
The grant of monetary compensation - Dodsworth vDodsworth (1973)
(compensation for the cost of improvements to land), Jennings v Rice (2003)
(compensation valued at the equivalent cost of a housekeeper).
Key Cases Checklist

DEFINITION
Ramsden v Dyson (1866)
4.2x.2
If someone buildsCommission v Belgium
on your land and you ignore it, you cannot later assert your
title over the land
Taylor Fashions Ltd v Liverpool Trustees Co Ltd ('1982)
A claim for proprietary estoppel is based on proof of an assurance; detriment
and reliance
THE REPRESENTATION
Crabb vArun District Council (1976)
A right of way cannot be denied to the claimant if you have built relying on the
provision of access
Inwards V Baker (1965)
A representation of rights in land will be binding on a third-party purchaser
Gillett V Holt (1998)
A promise of rights in a will can constitute a representation where there has
been detrimental reliance
control.
Pascoe V Turner (1979)
An oral representation of rights in land can constitute a representation in spite
Key
of no formal transfer Law
of rights
Thorner V Major (2009)
To establish proprietary estoppel the assurance has to be sufficiently clear
and this will depend on the context of the assurance. Proprietary estoppel can
be upheld where there is a continuing pattern of conduct over a significant
period of time
fulfi
RELIANCE ON THE REPRESENTATION
Greasley V Cooke (1980)
Detrimental reliance can be continuing to provide free services instead of
4.3.2
looking for a new job
Re Basham (1986)
A number of incidents of detriment may jointly be sufficient
DETRIMENTAL RELIANCE
Coombes V SmithKey(1986)Facts
Detriment can be ignored if there has been no assurance of rights
THE REMEDY
Jennings V Rice (2003)
The remedy should be proportionate to the assurance given
Williams v Staite (1979)
Misconduct by the claimant is irrelevant where estoppel has been established
E. R. Ives Investment V High (1967)
show
If a benefit is claimed ‘individual
over concern’.
land the burden is also carried
Yeoman’s Row Management v Cobbe (2008)
An oral commercial arrangement
Key Law that is binding in honour only cannot usually
generate a claim under proprietary estoppel
Pascoe V Turner (1979)
The courts awarded the transfer of the legal estate
Grant of a right to occupy property rent-free for the remainder of the
claimant’s life
Dodsworth V Dodsworth (1973)
Grant of monetary compensation rather than a right to remain in the property
6.2.1
Ramsden v Dyson (1866) LR 1 HL 129 HL
Key Judgment
Lord Kingsdown
‘If a stranger begins to build on my land supposing it to be
his own, and I perceiving his mistake, abstain from setting
him right, and leave him to persevere in his error, a court of
equity will not allow me afterwards to assert my title to the
land on which he had expended money on the supposition
that the land was his own.’
Key Law
Until 1982 proprietary estoppel relied on proof of five

probanda laid down in Willmott v Barber (1880) 15 Ch D 96:
ac claimant of an equity makes a mistake about his/her
legal rights;
bc on the basis of the mistake, the claimant acts to his/her
detriment by spending money or carrying out some act;
cc knowledge by the possessor of the legal right of the
other party’s belief;
dc knowledge by the other party that the belief is mistaken;
ec the other party must have encouraged the claimant in
the expenditure incurred.
6.1.3 Taylor Fashions Ltd v Liverpool Trustees Co

Ltd [1982] 1 QB 133 HC
Key Facts
A 28-year lease had been granted to the predecessors in title

of the claimants, Taylor Fashions. It carried an option to
renew for a further 14 years. The option had not been regis-
tered because the claimants mistakenly believed that it was
not necessary and, as a result, it was not binding on the third-
party purchasers of the freehold title. After taking possession
of the property, the claimants had carried out extensive
improvements to the property with the consent of the land-
lords. Taylor Fashions claimed that the landlords were
estopped from denying the exercise of the option to renew,
even though it had not been registered, because they had
known of the improvements made by the claimants.
Key Law
The court rejected the claim and upheld the defendants’

right to refuse to renew the lease.
The court took the opportunity to review the law on propri-
etary estoppel. It rejected the five probanda laid down in
Willmott v Barber and simplified the rules on proprietary
estoppel.
Today, a claim for proprietary estoppel must be based on
proof of the following: an assurance, detriment and reliance.
It is rare today for the five probanda of Wilmott v Barber to
be used. There are occasional references, e.g. Matharu v
Matharu (1994) 68 P & CR 93.
6.2.7 Crabb v Arun District Council [1976] Ch 179 CA
Key Facts
The defendant decided to sell part of his land. He had

reached agreement with the Council that he should have a
right of way over some Council land preventing his reserved
plot from becoming landlocked. This agreement was never
confirmed in writing. On this basis he sold part of his plot
but the Council then refused him access.
Key Law
The Council could not deny him rights because it had led
him to believe that he would be granted rights of way and
that had led him to act to his detriment in selling part of his
land without reserving an easement in his favour.
Key Judgment
Lord Denning
‘(the doctrine of estoppel) . . . seeks to prevent a person
from insisting on his strict legal rights – whether arising
under a contract, or on his title deeds, or by statute –
when it would be inequitable for him to do so having regard
to the dealings which have taken place between the
parties’.
6.2.1
Inwards v Baker [1965] 2 QB 29 CA
Key Facts
A son intended to buy some land in order to build a bungalow.

His father persuaded him to build on land belonging to him
but there was no formal conveyance of the land. The son
believed that he would have the right to remain on the prop-
erty during his lifetime but when the father died he discov-
ered that others had inherited the property.
Key Law
Although there was no formal conveyance to him, the court

upheld the son’s rights and granted him the right to remain
in the property during his lifetime, based on the representa-
tion made to him by the father.
Taylor v Dickens [1998] 3 FCR 455 HC
Key Facts
An elderly lady promised her gardener that she would leave

her estate to him. He continued to help her with work
around the house without pay.
Key Law
The court held that he was not entitled to claim a share of

her estate after her death based on estoppel because she
had not at any time suggested to him that she would not
exercise her right to change her will before death.
6.2.5 Gillett v Holt [2001] Ch 210 CA
Key Facts
Promises were made to the claimant over a period of time

that he would be left a share of the estate. The claimant had
worked for over 40 years for the defendant.
Key Judgment
Walker LJ
‘In this case Mr Holt’s assurances were repeated over a
long period, usually before the assembled company on
special family occasions.’
6.2.3 Pascoe v Turner [1979] 1 WLR 431 CA
Key Facts
The defendant and the claimant were not married. She

moved in with him at first as his housekeeper but this later
developed into a relationship and he represented to her
that she could regard his house as belonging to her. This
representation was made orally and so could not be a
formal transfer of rights.
Key Law
His promise was held to be a representation on which the

claimant had acted to her detriment and she was entitled to
a remedy.
6.2.3 Thorner v Major [2009] UKHL 18 HL
Key Facts
The claimant worked on his cousin’s farm over a period of

30 years without payment but with an expectation of even-
tually inheriting the farm. Although the Court of Appeal held
that the claimant’s case should fail because the represen-
tation was not sufficiently clear, the House of Lords upheld
his claim.
Key Judgment
Lord Neuberger
‘The courts should not be “unrealistically rigorous” in
applying the “clear and unambiguous” test.’
6.3.4 Greasley v Cooke [1980] 1 WLR 1306

CA
Key Facts
The claimant had been a maid working for a family. She had
stayed with the family for nearly 30 years, having begun a
relationship with one of the sons of the family. During this
time she had looked after a mentally ill member of the family
and cared for the house, having been assured that she
could stay there all her life.
Key Law
The court regarded the fact that during this time she did not
look for another job as detrimental reliance on the promises
made to her.
Key Judgment
Lord Denning
‘Suffice it that she stayed on . . . in . . . the house – looking
after Kenneth and Clarice – when otherwise she might have
left and got a job elsewhere.’
6.3.1 Re Basham [1986] 1 WLR 1498 HC
Key Facts
The claimant and her husband cared for her step-father

for a period of many years. He led them to believe that
he would leave his entire estate to the claimant when he
died.
Key Law
Although most of the incidents relied on in support of the

claim were non-financial and would not in themselves be
very significant, taken together they ‘went well beyond
what was called for by natural love and affection’: Edward
Nugee QC.
6.3.6 Coombes v Smith [1986] 1 WLR 808

HC
Key Facts
This case concerned a couple who were both married to

other partners. A house was purchased in the name of the
man and the woman moved in and started immediately to
decorate it. The man never moved in with her, even when
she moved to another house again purchased in his name.
He then started a relationship with another woman and she
claimed rights in the house based on estoppel.
Key Law
Her claim was refused on the basis that she was not
assured of property rights by the man when she first moved
into his house. So, neither the act of leaving her husband,
nor having a child and caring for it, nor decorating the prop-
erty could constitute detrimental reliance.
Key Problem
The courts seem to have taken differing views as to what

can constitute an assurance and also what constitutes
detriment. Compare the approach taken in Coombes v
Smith (1986) with other cases such as Re Basham (1986)
and Pascoe v Turner (1979).
6.6.4 Jennings v Rice [2003] 1 P & CR 8 CA
Key Facts
The claimant had cared for an elderly lady although he was

not related to her. She had led him to believe that he would
get a share in her estate, possibly her house and the
furniture – which were valued at approximately £400,000 –
and even the entire estate valued at over £1 million.
Key Law
The court awarded him £200,000, which was roughly the

equivalent of full-time nursing care. It held that a higher
award would be disproportionate to the assurances given.
Key Judgment
Robert Walker LJ
‘The equity arises not from the claimant’s expectations
alone, but from the combination of expectations, detri-
mental reliance, and the unconscionableness of allowing
the benefactor (or the deceased benefactor’s estate) to go
back on the assurance.’
Key Comment
Jennings v Rice establishes that in estoppel cases the court

is seeking to preserve some kind of proportionality between
the detriment, which has been incurred by the estoppel
claimant, and the remedy, which the court awards. This will
also take into account any benefit that the claimant may
have also received from the promisor.
6.2.3 Pascoe v Turner [1979] 1 WLR 431 CA
The courts awarded the transfer of the legal estate.
6.2.3 Thorner v Major [2009] UKHL 18 HL
The younger cousin, David Thorner, was granted the free-

hold of the farm.
6.3.4 Greasley v Cooke [1980] 1 WLR 1306 CA
The claimant was granted a right to occupy the property

rent-free for the remainder of her life.
Dodsworth v Dodsworth (1973) 228 EG 1115 CA
Grant of monetary compensation rather than a right to

remain in the property.
6.6.5 Williams v Staite [1979] Ch 291

CA
Key Facts
The defendants had been given the right to occupy two

cottages indefinitely. They also used a paddock that they
had no right to use and they even built a stable on the land.
Although the court grant prevented them from using the
paddock, they could not be prevented from enjoying the
cottages.
Key Law
The court did not take misconduct by the claimant into

account when considering an appropriate remedy where
estoppel had been successfully established.
7 Licences in land
Bare licence: Licence coupled w ith a

• Give the right to remain lawfully on grant:
the land of another. • Gives effect to another right, e.g. a
• Arise by express or implied grant. profit.
• Will not bind a third party • Limited only to the terms of the
purchaser. profit.
• Once it has been revoked, the • Cannot be revoked whilst the right
licensee has a reasonable time to continues.
leave. • Will bind a third party.
LICENCES DO NOT GIVE THE

LICENSEE AN ESTATE IN LAND
C ontractual licences: Estoppel licences:

• Granted either expressly or • Arise under the doctrine of
impliedly for consideration. proprietary estoppel.
• Does not require special • Claimant must prove an assurance,
formalities. reliance and detriment.
• Lasts for the duration of the • Once proved, a discretionary
contract. remedy will be granted to give
• Will not bind a third party unless it effect to the promise made.
takes effect as a constructive
trust.
Z 7.1 The nature of a licence

1 A licence does not give the licensee an estate or interest in the land
(Thomas v Sorrell (1673)).
2 A licence allows someone the right to enter the land of another with
permission and prevents him/her from becoming a trespasser.
94 Licences in land
3 Once permission has been withdrawn, the licensee becomes a

trespasser.
4 If the land is transferred to a third party, the rights of the licensee will
not be binding on the purchaser unless the court finds that a construc-
tive trust has arisen.
Z 7.2 Bare licences

1 A bare licence gives the licensee a right to enter the land of the licensor.
2 It arises either by express grant (e.g. an invitation to enter the land for a
social occasion) or by implied grant (e.g. someone delivering goods, or a
postman).
3 A bare licence is limited in extent and does not allow the licensee unlim-
ited rights over the property.
4 A bare licence can be revoked by the licensor at any time.
5 The licensor must make it clear that the licence has been revoked.
6 Once the bare licence has been revoked, the licensee has a reasonable
time in which to leave the property (Robson v Hallett (1967)).
Z 7.3 Licences coupled with a grant

1 A licence may arise in order to give effect to a grant of a right in the land
of another to take something from that land (a profit à prendre), e.g to
collect wood or to pick apples.
2 The licence is limited to enable the licensee to enjoy the profit and does
not give unlimited rights over the licensor’s land.
3 A licence coupled with a grant is not revocable as long as the proprietary
interest continues.
4 If a third party acquires land subject to a licensee’s right to a profit à
prendre, then the licensor cannot withdraw the licence.
5 An interest in land can include the right to carry out works on the land
(Hounslow LBC v Twickenham Garden Development Ltd (1971)).
Z 7.4 Contractual licences

1 A contractual licence is a licence granted either expressly or impliedly in
return for valuable consideration, e.g. the right to enter a cinema when
a ticket has been purchased (Hurst v Picture Theatres Ltd (1915)).
Estoppel licences 95
2 Since a licence is not an interest in land, it does not have to be in writing

to comply with s 2 LP(MP)A 1989.
3 The terms of the licence will depend on the terms of the contract (e.g. a
contractual licence to attend the cinema only lasts during the film and
will end once it is over).
4 At common law, a contractual licence can be revoked at any time by
the licensor (Wood v Leadbitter (1845)), but in equity, an injunction
can be granted in order to restrain a breach of a contractual licence
(Winter Garden Theatre (London) Ltd v Millennium Productions Ltd
(1946)).
5 A contractual licence is purely personal in nature and cannot bind a
third-party purchaser (King v David Allen & Sons (Billposting) Ltd
(1916)) unless it takes effect as a constructive trust or an estoppel
licence.
6 A constructive trust will only arise where the conscience of the purchaser
is affected.
7 Where a purchaser merely knows that a licence exists, it will not be
enough for the licence to be binding (Ashburn Anstalt v Arnold (1989)).
8 A reduction in the purchase price because the purchaser is aware of the
licence will be sufficient (Binions v Evans (1972)).
9 A contractual licence does not confer proprietary rights enforceable
against a third party. Exceptionally, Lord Denning held that a third
party was bound by a contractual licence in Errington v Errington
(1952).
10 An equitable remedy can be granted for breach of a contractual licence
in land, e.g. specific performance (Verrall v Great Yarmouth BC
(1981)).
Z 7.5 Estoppel licences

1 An estoppel licence is a licence that arises in favour of the licensee by
means of the doctrine of proprietary estoppel.
2 An estoppel licence arises where the claimant can establish the main
elements of proprietary estoppel: an assurance, reliance and detriment.
3 Once a claimant can show that he/she is entitled to an equity arising
from estoppel, it is for the court to determine the remedy.
4 The remedy will vary according to equity granted.
96 Licences in land
Key Cases Checklist

TYPES OF LICENCE
Thomas v Sorrell (1673)
No proprietary rights arise under a licence but it will confer legality
on an action
A LICENCE COUPLED WITH AN INTEREST OR GRANT
Hurst V Picture Theatres Ltd (1915)
A licence coupled with a grant is not revocable by the licensor
Hounslow LBC V Twickenham Garden Development Ltd (1971)
An ‘interest’ in land includes the right and duty to do works on land
CONTRACTUAL LICENCES
Wood V Leadbitter (1845)
A contractual licence can be revoked at any time by the licensor an<
the licensee’s remedy lies in damages
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd
(1946)
Reversed the principle in Wood v Leadbitter. A contractual licence
cannot be revoked whilst the contract subsists
Verrall V Great Yarmouth BC (1981)
The remedy for breach of a contractual licence in land can be
specific performance
ESTOPPEL LICENCES
Inwards V Baker (1965)
Rights arising under estoppel constitute licences in land
THE EFFECT ON THIRD PARTIES
King V David Allen & Sons (Billposting) Ltd (1916)
A licence cannot constitute a proprietary right on land
Errington V Errington & Woods (1952)
Binions V Evans (1972)
A contractual licence can bind a third-party purchaser
Ashbum Anstalt v Arnold (1989)
A contractual licence cannot bind a third party unless there is
evidence of a constructive trust
7.1.1 Thomas v Sorrell (1673) Vaughan 330 CA
Key Judgment
Vaughan CJ
‘A dispensation or licence properly passeth no interest, nor
alters or transfers property in anything, but only makes an
action lawful without it had been unlawful.’
7.4.1 Hurst v Picture Theatres Ltd [1915] 1 KB 1

CA
Key Facts
The claimant was forcibly ejected from a cinema although

he had earlier bought a ticket. He brought an action in tres-
pass against the cinema owners based on his right to
remain on the premises.
Key Law
If a licence is coupled with a grant of an interest, it is not

revocable by the licensor, whereas a mere licence can be
revoked at any time and the licensee merely has time to
leave the premises before becoming a trespasser.
Key Judgment
Buckley LJ
‘If the facts here are as I think they are . . . that the licence
was a licence to enter the building and see the spectacle
from its commencement until its termination, then there
was included in that contract a contract not to revoke the
licence until the play had run to its termination. It was then
a breach of contract to revoke the obligation, not to revoke
the licence.’
7.3.5 Hounslow LBC v Twickenham Garden

Development Ltd [1971] Ch 233 HC
Key Facts
The defendants started building works on the claimant’s

land. The claimants became dissatisfied with the defend-
ants’ standard of work and they tried to terminate their
contract and, as a result, asked them to leave their land.
The defendants argued that the conditions of the contract
had not been broken.
Key Law
It was held that as long as the contract subsisted, the

defendants had a right to be on the claimant’s land.
98 Licences in land
Key Comment
An ‘interest’ is not confined to an interest in land or in chat-

tels and it could include the right to attend a creditors’
meeting or to see a cinema performance, as well as the
right and duty to do works on land.
Key Judgment
Megarry J
‘A licence to go on land to sever and remove trees or hay, or
to remove timber or hay that have already been severed, are
accepted examples of a licence coupled with an interest.’
7.4.4 Wood v Leadbitter (1845) 13 M&W 838 HC
Key Facts
The claimant had bought a ticket to attend the races at

Doncaster. This entitled him to attend for four days. He was
forcibly ejected before the end of the race meeting and
claimed that he had an irrevocable licence to remain on the
premises for the entire four days, so was entitled to damages
for assault. It was held that he could claim damages for
breach of contract but the court held that the licence was
revocable and so, once revoked, the claimant became a
trespasser, which meant he was not entitled to damages.
Key Law
A contractual licence is a licence granted for value such as

the right to park in a car park. The extent of the rights
conferred by a contractual licence is governed by general
contractual principles. Some rights will be implied and
others will be expressly agreed between the parties.
7.4.4 Winter Garden Theatre (London) Ltd v

Millennium Productions Ltd [1946] 1
All ER 678 CA/HL
Key Facts
The defendants granted the claimants a licence to use their

theatre for the production of plays, concerts or ballets for
six months. They also held an option to renew the contract,

which they chose to exercise. The defendants then tried to

revoke their licence, although the claimants were not in
breach of their contract.
Key Law
The Court of Appeal held that while the contractual licence

can be revoked at any time under common law, under
equity a contractual licence may be irrevocable.
The case went on appeal to the House of Lords and it was
held that in the construction of this contract, the licence
was intended to be revocable. It was never intended that
the licence should be irrevocable. The House of Lords
concluded that there was an implied term allowing the
licensor to terminate the licence after a year by a reason-
able period of notice. The House of Lords concluded that
Lord Greene was correct in saying that a licence should not
be regarded as separate from the contract.
7.4.10 Verrall v Great Yarmouth BC [1981] QB 202 CA
Key Facts
The Great Yarmouth Borough Council had agreed with the

National Front that they could use the Wellington Pier for
their annual conference. The Labour Party gained control of
the Borough Council and tried to revoke the National
Front’s licence. The Court of Appeal granted an order for
specific performance to the claimants.
Key Law
As the remedy lay in equity it was therefore discretionary.

In this case the special factor that the claimants could not
find another venue at such short notice allowed the court
unusually to order specific performance rather than merely
award damages.
An estoppel licence arises in favour of the licensor by
means of the doctrine of proprietary estoppel.
Key Link
Many of the cases considered under proprietary estoppel

will be relevant here. Consider Inwards v Baker [1965] 2 QB
100 Licences in land
29 (above) where the son, who had been urged by his father
to build a bungalow on the father’s land, was granted an

irrevocable licence to live there after the father’s death. The
court adopted a similar approach in Greasley v Cooke
[1980] 1 WLR 1306 when a maid who had cared for a family
and had been encouraged to believe that she could live in
the property all her life was granted a right to remain in the
property during her life.
7.4.5 King v David Allen & Sons (Billposting) Ltd

[1916] 2 AC 54 HL
Key Facts
The defendants granted the claimants a contractual licence

to put up posters and advertisements on the wall of a
cinema when it had been built. Once built, the cinema was
leased to a company who then refused the claimants the
right to put up the posters. The House of Lords refused to
enforce the licence against the third-party company.
Key Law
The licence was a purely personal right between the parties

and only enforceable in contract. It was not a proprietary
right in land.
Key Problem
Is there any reason why a contractual licence should not be

enforceable as a right in land? There have been a number
of attempts over the years, mainly by Lord Denning, to try
to confer proprietary status on contractual licences.
7.4.9 Errington v Errington and Woods [1952]

1 KB 290 CA
Key Facts
A man purchased a house for his son and daughter-in-law,

which he told them they would own provided that they paid
the mortgage instalments. The instalments constituted
two-thirds of the purchase price. He promised them that
the house would be theirs when the mortgage had been
paid off. After the father’s death, the son deserted his wife
and his mother, who now owned the cottage, tried to

recover possession from her daughter-in-law.
Key Law
It was held that the contractual licence of the daughter-in-

law was binding on the mother.
Key Comment
The judge in Errington was Lord Denning who sought to

confer proprietary status on contractual licences. He
argued that notice of the licence would render them binding
on the purchaser. Although he was successful in Errington
it was short-lived and the House of Lords refused to enforce
the personal rights of a wife against a mortgagee in National
Provincial Bank Ltd v Ainsworth (1965). However, he
continued to support the principle in subsequent cases but
usually without the support of his fellow judges.
7.4.8 Binions v Evans [1972] Ch 359 CA
Key Facts
A defendant had remained in a cottage in which she had

lived rent-free with her husband whilst he was employed on
the Tredegar Estate. On his death she was given the right to
continue living there as tenant-at-will, rent-free, for the
remainder of her life on condition that she kept the cottage
in good repair and cared for the garden. The claimants
purchased the estate and tried to evict her. The Court of
Appeal held that her rights bound the claimants since they
had purchased the cottage subject to her rights and at a
reduced price.
Key Law
The three judges in the Court of Appeal all agreed that

her rights were binding, but they did not agree on what
basis the defendant could claim the right to live in the
property.
Only Lord Denning decided the case on the basis of a
contractual licence, and the fact that this could give the
occupier an equitable interest in the land and prevent the
purchaser from turning the occupier out if he bought with
knowledge of her right. He also suggested that where a
102 Licences in land
purchaser bought with knowledge of rights, he would be

bound by those rights as constructive trustee.
7.4.7 Ashburn Anstalt v Arnold [1989] Ch 1 CA
Key Facts
This case reviewed the law on the status of contractual

licences. The owner of a shop sold it to a developer subject
to a right that he could remain there, rent-free, until the
redevelopment took place. A third-party purchaser argued
that this right did not bind him because it was a licence.
Key Law
A contractual licence would not bind a third party unless

there was evidence of a constructive trust. Fox LJ consid-
ered what evidence would lead one to conclude that
there was a constructive trust. Certainly, evidence that the
purchaser had bought at a reduced price would be suffi-
cient to suggest that the rights should be upheld, but to
purchase merely with notice of the rights would not give
rise to a constructive trust, although to buy expressly giving
effect to third-party rights will raise a constructive trust.
8 Co-ownership
Types o f co-ow nership

The jo in t tenancy The tenancy in com m on
• The rights of survivorship; • The rights of survivorship does not
• the four unities: operate.
i) possession; • Individual putative share.
ii) title;
iii) interest;
iv) time;
• no share in property.
Jo in t tenancy o r tenancy in com m on?

The following suggest a tenancy in common:
a) any words of severance; d) commercial purchase;
b) any of the four unities absent; e) lessees of business premises;
c) unequal contributions; f) joint mortgages of property.
Where there is an express declaration on the conveyance the common law
principles do not apply (Goodman v Gallant (1986)).
Method o f severance
Statute: a) S 36(2) written notice.
Common law: b) Joint tenant (acting on his share):
i) an act operating on a joint tenant's share;
ii) mutual agreement;
iii) mutual conduct,
c) Homicide.
Z 8.1 Types of co-ownership

1 Co-ownership arises where two or more people have an interest in one
piece of property at the same time.
2 Two types of co-ownership exist today: the joint tenancy and the
tenancy in common.
104 Co-ownership
3 Under a joint tenancy, each joint tenant is said to be wholly entitled to

the whole of the estate or interest that is the subject of co-ownership.
4 The tenancy in common differs because each co-owner is said to own a

distinct share or a notional proportion of entitlement.
5 A joint tenancy in equity may be severed and can become a tenancy in
common either in relation to the whole of the property or for just a
single share.
Z 8.2 The joint tenancy

1 In a joint tenancy, no tenant owns a specific share.
2 Any transfer of the legal title must be carried out by all the joint tenants
together.
3 There are two main features of the joint tenancy:
O the right of survivorship (ius accrescendi);
O the four unities.
8.2.1 The right of survivorship

1 Under the Law of Property Act s 1(6), a legal estate is incapable of
existing in divided shares.
2 On the death of one joint tenant, the estate remains with the surviving
joint tenants.
3 The joint tenancy ends when the property vests in a sole survivor.
4 Any attempt to pass an interest in a joint tenancy under a will is unen-
forceable because the joint tenant has no separate share to leave under
his/ her will.
5 Since the legal estate automatically vests in the other joint tenants,
there is no need to formally vest the legal title in the names of the
survivors.
8.2.2 The four unities

1 The four unities must be present before a joint tenancy exists.
2 The four unities are: possession, interest, time and title.
The joint tenancy 105
U nity o f possession
U nity o f interest
Every joint tenant is entitled to
every part of the co-owned • The interest held must be the
land. same in extent, nature and
duration.
• No joint tenant can effectively deal
with the legal estate on their own.
THE FOUR UNITIES
U nity o f tim e
The interest of each joint
U nity o f title tenant must start at the
same time (there can be
Each joint tenant must take his/her title
exceptions).
from the same source, e.g. the same
grant of a tenancy.
Z 8.3 The tenancy in common

1 Under a tenancy in common the co-owners hold specific shares in land,
or a proportional share.
2 Although each tenant can claim a share, he cannot physically separate
the property and claim exclusive possession over his share of the
property.
3 Each tenant in common has the right to enjoy the whole property.
4 The doctrine of survivorship does not operate on the death of a tenant
in common, and the share can pass under a valid will or intestacy.
5 Only one of the four unities (unity of possession) need be present
between tenants in common.
8.3.1 Tenancy in common or joint tenancy?

1 The common law leans in favour of a joint tenancy, but equity leans in
favour of a tenancy in common.
2 It was held in Kinch v Bullard (1999) that a tenancy in common can
represent certainty and fairness (see 8.4.1, below).
3 Under the LPA 1925 s 1(6) and s 36(2), co-ownership of a legal estate
in land must be as a joint tenancy.
4 There can never be severance of the legal estate.
106 Co-ownership
5 An express declaration concerning the co-owned shares in the equitable

estate will be binding on the parties (Goodman v Gallant (1986)).
6 Where two or more people own as joint tenants in law, they will be
deemed to own as joint tenants in equity as under the equitable maxim
‘equity follows the law’. This maxim will apply where two legal owners
have not indicated whether they own the equitable estate as tenants in
common or joint tenants on the Form TR1 when they register the prop-
erty at the Land Registry.
7 Equity will not follow the law where one of the legal co-owners can
establish exceptional circumstances such as that it is fair in all the
circumstances that the shares should be unequal (Stack v Dowden
(2007)). In these cases the parties will hold as tenants in common.
8 There are a number of factors that will indicate whether the equitable
estate is held as a joint tenancy or a tenancy in common. The following
equitable presumptions indicate a tenancy in common:
a) Words of severance, e.g. in equal shares or to be divided between
X and Y.
b) One of the four unities is absent.
c) Contributions of purchase money in unequal shares. The share will
usually be proportional to the size of the contribution unless there is
a contrary indication.
d) Two or more commercial partners of business assets are presumed to
hold the equitable estate as tenants in common (Lake v Craddock
(1732)).
e) Lessees of business premises are presumed to hold the premises as
tenants in common in equity (Malayan Credit Ltd v Jack Chia-
MPH Ltd (1986)).
f) Joint mortgagees who lend money on the security of a mortgage are
presumed to hold the equitable estate in the mortgage as tenants in
common in equity.
Z 8.4 Methods of severance of the

equitable estate
8.4.1 Severance by written notice

1 A joint tenant can sever his share by giving the other joint tenants a
written notice of his desire to sever the joint tenancy (s 36(2) LPA
1925).
Methods of severance of the equitable estate 107
2 The consent of the other joint tenants is not required for this to be
effective.
3 Severance must take effect during the lifetime of the joint tenant. It
cannot take effect under a will.
4 The notice can be in any form. In Re Drapers Conveyance (1969) it was
held that a summons in court proceedings was sufficient as long as it
showed an immediate intention to sever the joint tenancy.
5 The written notice does not need to be signed or witnessed.
6 It is sufficient to prove that it was actually posted to the other joint
tenants, even if it was not actually read by them (Kinch v Bullard
(1999)).
7 A letter sent by recorded post is deemed to be served if it is not returned
to the post office (Re 88 Berkeley Road [1971]).
8 Written severance will not be effective unless it is to take immediate
effect (Harris v Goddard [1983]) and it must be served on all the joint
tenants.
9 An application to the Court of Protection will qualify as written
notice of an intention to sever a joint tenancy (Quigley v Masterson
(2011)).
8.4.2 Severance by an act of a joint tenant

‘operating upon his share’
1 Section 36(2) LPA 1925 preserves the pre-1925 methods of severance
under Williams v Hensman (1861), which take effect under common law.
2 There are three alternatives:
a) an act operating on a joint tenant’s share;
b) mutual agreement;
c) mutual conduct.
3 Any act of total or partial alienation of the joint tenant’s share will be an
act of severance, e.g. sale or mortgage of his/her share (unless this is
fraudulent: First National Securities Ltd v Hegerty (1985)) or any
contract to transfer his/her share.
4 There can be severance where there is an involuntary act of alienation,
e.g. bankruptcy.
5 Severance can be brought about when all the joint tenants mutually
agree to sever their shares. It must be more than mere discussion, but
108 Co-ownership
once there is agreement it need not be in writing or in any special form

(Burgess v Rawnsley (1975); Davis v Smith (2011)).
6 Severance can also result from evidence of any course of dealing. It is

sufficient if there is a course of dealing in which one party makes clear to
the other that he desires that their shares should no longer be held
jointly but held in common.
7 Negotiations will not be enough to show a course of dealing (Gore and
Snell v Carpenter (1990)). Note the decision in Burgess v Rawnsley
(1975) where negotiations were enough for severance because the
parties had agreed on severance but disagreed on the sale price from one
tenant to the other.
8.4.3 Severance by homicide

1 If one joint tenant murders the other joint tenant, the tenancy will be
severed on the general principle that no one is allowed to profit from his
wrongdoing.
2 This principle displaces the doctrine of survivorship. Under the Forfei-
ture Act 1982, the court has some limited statutory discretion to modify
the forfeiture rule, having looked at the surrounding circumstances of
the case, e.g. conduct of the offender and of the deceased and other
material circumstances (Re K (deceased) (1985)).
Key Cases Checklist

EXPRESS DECLARATION
Goodman v Gallant (1986)
An indication of equitable ownership on the conveyance will be binding
Stack V Dowden [2007]
Failure to indicate on documents of registration whether the equitable
estate is held as a joint tenancy or tenancy in common is not conclusive
and the law will presume that the legal owners will hold the property on
trust for themselves as joint tenants
OTHER EVIDENCE OF EQUITABLE OWNERSHIP

Malayan Credit Ltd v Jack Chia-MPH Ltd (1986)
Partners in business hold an equitable estate in property as tenants in
common. Other evidence of a tenancy in common includes purchase in
unequal shares; security for a loan
SEVERANCE OF A JOINT TENANCY

i) Statute
Re Draper's Conveyance (1969)
A joint tenancy is severed where written notice is served satisfying
s 36(2) LPA 1925
Harris V Goddard (1983)
No severance unless an immediate desire to sever is shown
ii) Severance by post
Kinch V Bullard (1998)
Once a letter has been delivered there is effective severance under
statute
Re 88 Berkeley Road (1971)
A recorded letter constitutes severance under s 196(4) LPA 1925 if the
letter has not been returned by the post office
Gore and Snell v Carpenter (1990)
An agreement to sever is not effective unless it is intended to take effect
immediately
iii) Common law
Burgess V Rawnsley (1975)
Negotiations over severance can be sufficient under common law even
where agreement has not been reached
Davis V Smith (2011)
First National Securities Ltd v Hegerty (1985)
An act of alienation of a share can constitute severance
FORFEITURE
Re K (Deceased) (1985)
The Forfeiture Act 1982 allows the court to modify the operation of the
forfeiture rule where hardship could result
w У
110 Co-ownership
8.3.1.5 Goodman v Gallant [1986] 1 All ER 311

CA
Key Facts
A wife jointly owned the matrimonial home with her

husband. Her new partner purchased her former husband’s
share with financial help from the wife. The conveyance
declared that the two would be beneficial joint tenants.
After that relationship broke down, the wife claimed a
three-quarter share in the property based on her half-share
and the financial assistance that she gave to her partner.
The court held that the declaration was binding and the
parties held as joint tenants in equity.
Key Law
Where the conveyance expressly states that property is to

be held under a joint tenancy, it is irrelevant that there are
other features such as contributions in unequal shares that
would normally indicate a tenancy in common.
8.3.1.7 Stack v Dowden [2007] 2 AC 432 HL
Where the legal estate in land is held by more than one person
and it has not been indicated on the registration of the title
whether the parties hold as joint tenants or tenants in
common, then it is presumed that equity will follow the law
and they will hold as joint tenants. However, this presumption
can be rebutted with contrary evidence and the presumption
was rebutted in this case. An unmarried couple purchased
property jointly. The woman, Ms Dowden, contributed 65 per
cent whilst the man, Mr Stack, contributed 35 per cent. The
law normally presumes that equity will follow the law and the
shares will be held as joint tenants. When their relationship
broke down, the court held that the presumption could be
rebutted in this case because the couple had kept their
finances separate throughout their relationship and so the
shares were held as tenants in common.
8.3.1.8 Malayan Credit Ltd v Jack Chia-MPH Ltd

[1986] AC 549 (PC) PC
Key Facts
The parties had taken a lease of business premises as joint

tenants at law. They agreed that each party would occupy
a specific part of the premises and pay rent and expenses
pro rata. There was no express agreement as to the nature
of the tenancy.
Key Law
In this case, as they were partners in a business, the court

held they were tenants in common.
Re Draper’s Conveyance [1969] 1 Ch 486 HC
Key Facts
A husband and wife divorced in 1965. Together, they jointly

owned the matrimonial home under an express trust. The
wife sought an order for the sale of the house with the
proceeds to be shared between them. Before the case was
heard, the husband died intestate. The court found that there
was severance under s 36(2) LPA 1925. The issue of the
summons clearly showed an intention to sever immediately.
Key Law
The joint tenancy will be severed once written notice that

satisfies s 36(2) LPA 1925 is served on the other joint
tenants showing an immediate desire to sever, and not a
desire to sever at some time in the future.
Key Judgment
Plowman J
‘The written notice clearly evinced an intention on the part of
the wife that she wished the property to be sold and the
proceeds distributed, a half to her and a half to the husband.’
112 Co-ownership
8.4.1.8 Harris v Goddard [1983] 1 WLR 1203

CA
Key Facts
A husband and wife split up and the wife started divorce

proceedings. She stated in her petition that she wanted the
court to make ‘such order in relation to the matrimonial
home as may be just’ and this was to include either transfer
of the home or settlement of the property or variation of
existing trust interests. Three days before the petition was
heard, the husband was injured in a car crash and later died.
Key Law
The court held that the joint tenancy had not been severed.
There was no severance because no immediate desire to
sever, necessary for s 36(2) LPA 1925, was shown in the
papers.
8.3.1.2 Kinch v Bullard [1998] 4 All ER 650 HC
Key Facts
A couple owned the matrimonial home as joint tenants in

law and in equity. The wife petitioned for divorce and sent a
letter to her husband by ordinary post, indicating her inten-
tion to sever the joint tenancy. The following day he had a
heart attack and was rushed to hospital. The letter was
delivered to the house whilst he was in hospital. The wife
intercepted the letter and decided to destroy it because she
considered that her husband would possibly pre-decease
her and, although she herself was ill, she anticipated that
she would outlive him. Eventually both parties died and the
court had to consider whether the letter had severed the
joint tenancy before the death of the husband, in spite of
the fact that the wife had changed her mind and withdrawn
her agreement.
Key Law
Once the letter had been delivered, there was effective

severance under statute, and it was too late for the joint
tenant to have a change of mind. Therefore, the husband’s
share passed under the terms of his will and did not auto-
matically pass to the wife under the survivorship rules.
Key Judgment
Neuberger J
‘Provided that it can be established that irrespective of the
identity of the person who delivered the notice to a partic-
ular address, it was delivered to that address, then the
notice has been validly served at that address.’
Key Problem
What if the letter had been intercepted before delivery?

Then might it have been possible for severance to be with-
drawn? The wife might have been able to withdraw the
letter from the postman before delivery.
8.4.1.7 Re 88 Berkeley Road [1971] Ch 648 HC
Key Facts
A house was purchased by two single women, Miss

Goodwin and Miss Eldridge, who held the property as joint
tenants. Miss Goodwin sent a notice to Miss Eldridge, who
was to marry in a few weeks, stating that she intended to
sever her interest in the property. This was sent by recorded
delivery, which expected acknowledgement of receipt
of the notice. As Miss Eldridge was not at home, Miss
Goodwin signed for the delivery of the note that she had
sent. Miss Goodwin died soon after this and her executors
claimed that there had been severance. It was claimed on
behalf of Miss Eldridge that as she had not received the
notice, there had not been proper severance.
Key Law
As the letter was sent by recorded delivery, s 196(4) applied.

This held that notice has been served if a letter had been
sent by recorded post and had not been returned to the
post office. The fact that the party intending to sever had
signed for the recorded letter did not affect the issue of
severance.
114 Co-ownership
8.4.2.7 Gore and Snell v Carpenter (1990)

60 P & CR 456 HC
Key Facts
A husband and wife decided to split up. Together they were

beneficial joint tenants of two houses. One solicitor drew up
a separation agreement dealing with the property and, in
particular, the draft agreement included a severance clause
in relation to their interests in the matrimonial home.
However, there was no specific attempt to sever the joint
tenancy before the husband died and the separation agree-
ment had not been fully agreed.
Key Law
The court did not find severance because the parties had
not reached agreement and there was no evidence of an
immediate intention to sever.
Key Judgment
Blackett-Ord J
‘A course of dealing is where, over the years, the parties
have dealt with their interests in the property on the footing
that they are interests in common and are not joint.’
8.4.2.1 Williams v Hensman (1861) 1 John & H 546 HC
Key Judgment
KJ Page-Wood VC
‘. . . A joint tenancy may be severed in three ways: in the
first place, an act of any one of the parties interested oper-
ating upon his share may create severance of that share . . .
Secondly, a joint tenancy may be severed by mutual agree-
ment. And, in the third place, there may be severance by
any issue of dealing sufficient to intimate that the interests
of all were mutually treated as constituting a tenancy in
common . . .’
8.4.2.3 First National Securities Ltd v Hegerty [1985]

QB 850 CA
Key Facts
A couple purchased a house jointly. The house was to be

their home for retirement. Before they moved in, the
husband left his wife. He raised money on a mortgage but
did not tell his wife and he forged her signature on the
documentation.
Key Law
It was held that this was an act of alienation that had

severed the joint tenancy and the husband and wife were
held as tenants in common. This protected the share of the
wife from the mortgagee.
8.4.2.5 Burgess v Rawnsley [1975] Ch 429 CA
Key Facts
A couple met at a rally in Trafalgar Square. They became

friends and, as a result, jointly purchased a house. It was
expressly declared in the conveyance that they held as joint
tenants. The relationship did not develop into marriage and,
later, Mr Honick offered to buy Mrs Rawnsley’s share. They
discussed this and Mrs Rawnsley agreed to sell her share
to Mr Honick but disagreed about the price. On Mr Honick’s
death, the price was still undecided. It was held that the
doctrine of survivorship did not apply and the joint tenancy
was severed at common law. Mrs Rawnsley could only
claim a one-half share in the property. The other half went
to Mr Honick’s daughter who succeeded to his estate.
Key Law
The Court of Appeal decided that the joint tenancy had been
severed at common law under mutual agreement. There had
not been agreement as to the exact price but there was suffi-
cient negotiation for the court to find that there had been
mutual agreement about the sale and a course of mutual
dealing and thereby severance under common law.
116 Co-ownership
8.4.2.5 Davis v Smith [2011] EWCA Civ 1603

CA
A married couple jointly purchased property. The marriage

broke down and the claimant issued divorce proceedings.
It was agreed between the parties that the property should
be sold. Before a written notice of severance could be sent,
the wife unexpectedly died having left her share under her
will. It was held that there was common law severance
through mutual agreement, not because they had agreed to
sell the property but because they had agreed to share the
proceeds equally between them.
See Gore and Snell v Carpenter (1990) 60 P & CR 456

The court did not find mutual conduct as there were simply
negotiations between the husband and wife; there was no
finality and there was no mutuality.
8.4.3.2 Re K (deceased) [1985] Ch 85 HC
Key Facts
A couple had been unhappily married for many years. The wife
had suffered from continuous and grave domestic violence.
One evening they had a serious fight and the husband was
killed by a shot from a loaded shotgun. It was fired acciden-
tally by the wife and found to be a tragic accident.
Key Law
Where one joint tenant is responsible for the death of the

co-tenant, the court will usually hold the tenancy to be
severed and refuse to uphold the principle of survivorship.
In this case, by applying s 2(1) of the Forfeiture Act 1982,
and because of the special circumstances of this case,
survivorship was held to apply.
Key Judgment
Section 2 of the Forfeiture Act allows the court to modify

the operation of the forfeiture rule, which prevents survivor-
ship from taking effect. It will take into account the conduct
of the offender and of the deceased and other material
circumstances. However, severance has been held to have
taken place in some cases where the surviving joint tenant
had aided and abetted suicide, which is contrary to the law
under the Suicide Act 1961.
9 Co-ownership of
land after 1996:

trusts of land
All co-owned Trustees have power of Beneficiaries have:

land held as a absolute owner. Must act • right to occupy;
‘trust of land’. unanimously. Must • right to be consulted;
consult beneficiaries. • right to require
V ^ express consents;
• right to appoint/
remove trustees.
Equitable rights can be

overreached if rights are
capable of being
overreached, and the CO-OWNERSHIP OF LAND
conveyance is made by AFTER 1996
the trustees, and the
purchaser pays purchase
money to two trustees.
Once overreached, rights Different criteria apply
transfer from land to where sale made by
purchase money. trustee in bankruptcy.
Any person with interest can apply to the court and the court
applies certain criteria:
i) intentions of persons creating the trust;
ii) purposes of trust;
iii) welfare of any minor;
iv) interests of any secured creditor.
118 Co-ownership of land after 1996: trusts of land
Z 9.1 Characteristics of a trust of land

1 All co-owned land is held under a ‘trust of land’ under the Trusts of
Land and Appointments of Trustees Act 1996 (TOLATA).
2 The legal estate can only be held as a joint tenancy.
3 The legal estate can only be held by persons who are aged 18 or over.
Persons under 18 can only hold an equitable estate in land.
4 The maximum number of trustees of the legal estate is limited to four
(s 34 LPA 1925). If there is an attempt to transfer the legal estate to
more than four people, it will be held by the first four who are willing and
eligible to hold a legal estate and named on the conveyance.
5 The equitable estate can be held either as a joint tenancy or as a tenancy
in common.
6 The equitable estate determines the distribution of the beneficial
interests.
7 There is no limit on the number of persons who can hold an equitable
estate.
Z 9.2 Changes made under the TOLATA 1996

1 Before the 1996 Act, land held in concurrent ownership was either held
in a strict settlement or under a trust for sale.
2 Today, all concurrent ownership of land under a trust, whether it
is express, implied, resulting or constructive, is held under a trust of
land.
3 The 1996 Act prevents the creation of any new strict settlements in
land. Today, successive interests in land can only be created under a
trust of land.
4 All express trusts for sale created before 1997 are converted into ‘trusts
of land’.
Z 9.3 Powers of the trustees of land

1 The trustees of land have all the powers of absolute owner. Many of the
powers can be expressly excluded.
2 The powers of the trustees must be exercised unanimously or not at all.
3 The trustees have wide powers to sell, lease and mortgage the legal
estate in the trust land.
Rights of the beneficiaries under a trust of land 119
4 The trustees also have power to purchase further land in England and
Wales (s 6(3) TOLATA 1996).
Z 9.4 Rights of the beneficiaries under a trust

of land
1 The right to insist that express consents must be obtained before certain
actions in relation to the land can be taken. Under s 8 TOLATA 1996,
there can be a requirement in the trust instrument for one or more
consents to be obtained before sale or other disposition.
2 The right to be consulted. Under s 11 TOLATA 1996, the trustees have
a duty to consult the adult beneficiaries so far as is practicable.
O The duty may be restricted by the trust instrument or the court –
there is no duty to consult a beneficiary who is also a trustee.
O It is only a duty to consult – there is no obligation to comply with
their wishes.
O The trustees should comply with the wish of the majority if it is in the
general interest of the trust.
3 The right to occupy land. Under s 12 TOLATA 1996:
O any beneficiary entitled to an interest in possession is entitled
to occupy the trust property; this right had been enjoyed under
common law by anyone with a beneficial interest in land (Bull v Bull
(1955));
O there is no right to occupy where land has been purchased for invest-
ment purposes;
O trustees can exclude or limit the right to occupy or partition the land
(Rodway v Landy [2001]) under s 13 TOLATA 1996;
O the trustees cannot exclude all the beneficiaries from occupation of
the land;
O section 13 lists a number of factors that the trustees must have
regard to in deciding whether to restrict occupation, including
the intentions of the person creating the trust and the purpose for
which the land is held, and the circumstances of each of the
beneficiaries;
O a beneficiary has no right to occupy land that is either ‘unavailable’
or ‘unsuitable’ for occupation by him.
4 The right to appoint and remove trustees. Adult beneficiaries under a
trust of land who are in agreement can give written directions that one
or more of the trustees should retire from the trust, or that a named
person should be appointed as trustee (s 19 TOLATA 1996).
5 Right to apply for a court order. All beneficiaries who have an interest in
the land have the right to apply to court for an order resolving any
disputes in land (s 14 TOLATA 1996).
Z 9.5 Overreaching under a trust of land

1 Overreaching allows a purchaser to take free of certain beneficial inter-
ests, provided the purchaser complies with the provisions laid down in
the LPA 1925.
2 Overreaching is a conveyancing device whereby these beneficial inter-
ests are transferred from the land to the purchase money (City of London
Building Society v Flegg [1988]).
3 Certain conditions under the LPA 1925 s 2(1) must be satisfied:
O the conveyance must be made by trustees of land;
O there must be a conveyance (e.g. a mortgage, lease or sale);
O the interests must be capable of being overreached (e.g. a beneficial
interest under a trust).
4 Non-overreachable rights are rights that cannot be exchanged for
money (e.g. an easement or a restrictive covenant); they remain as
burdens on the land where the purchaser has notice.
5 The purchaser must comply with s 27 LPA and pay over the purchase
money to two trustees or a trust corporation.
6 There are some exceptions, e.g. payment to a trust corporation or a sole
personal representative.
7 It is also an exception where no payment is made at the time of disposi-
tion, e.g. State Bank of India v Sood (1997), where the bank made funds
available at a future date, but not at the time of charge; held that benefi-
cial rights were overreached.
Z 9.6 The effects of overreaching

1 The purchaser can take the land free of all interests in equity behind the
trust.
2 The beneficial rights are transferred to the capital monies and the bene-
ficiaries can make a claim against the trustees who hold the capital
money.
Applications to the court under TOLATA 1996 121
3 The purchaser may be protected even if the trustees have failed to get all
the requisite consents. Consent from any two named persons will be
enough (s 10 TOLATA 1996).
Z 9.7 Applications to the court under

TOLATA 1996
1 An application may be made to the court under s 14 by any person who
has an interest in the trust property, e.g. the trustees, beneficiaries and a
mortgagee.
2 The court may resolve the dispute by ‘declaring the nature or extent of
any person’s interest in the trust land or its proceeds’ (s 14 TOLATA
1996).
3 Section 14 is more widely drafted than s 30 LPA 1925, which also
allowed applications to the court, and it covers a wider variety of poten-
tial applications, e.g. disputes concerning the beneficiaries’ right to
occupy and any disagreements about sale of the trust land.
4 The court must consider certain criteria laid down in s 15 TOLATA
1996 as well as the circumstances and wishes of the beneficiaries.
5 The criteria laid down include:
a) the intentions of the person or persons who created the trust
(Re Buchanan-Wollaston’s Conveyance (1939), Jones v Challenger
(1961), Bedson v Bedson (1965), Re Evers Trust (1980));
b) the purposes for which the trust land is held;
c) the welfare of any minor who occupies the trust land;
d) the interests of any secured creditor of any beneficiary.
6 Before the 1996 Act, the main focus of the law was on the purpose for
which the land was bought ((Jones v Challenger (1961), Re Buchanan-
Wollaston’s Conveyance [1939]), and if that purpose had been fulfilled
the court would order sale.
7 Today, the purposes of the trust are just one of the criteria considered by
the court; the other criteria must also be taken into account.
8 A co-tenant is entitled to rent from a co-tenant if the threat of
violence forces them to leave the trust property (Dennis v McDonald
(1982)).
9 Although under s 15 TOLATA 1996, no one factor is to be considered
by the court above all others, in Bank of Ireland Home Mortgages Ltd v
Bell (2001) the court held that the interests of the secured creditors
and whether or not they were entitled to their money was a powerful
consideration. This reversed the view taken in Mortgage Corporation v
Shaire (2001), which had held that the rights of the secured creditors
would not rank above the other factors of s 15. Sale was delayed in
Edwards v Lloyds TSB (2004) because of the needs of the children.
Z 9.8 Applications for sale by a trustee in

bankruptcy
1 If the beneficiary’s trustee in bankruptcy applies for sale under s 14, the
criteria laid down in TOLATA 1996 will not apply.
2 The case is heard in the bankruptcy court, which will make such order
as it thinks ‘just and reasonable’ having regard to the interests of the
bankrupt’s creditors (s 335A Insolvency Act 1985).
3 Matters that the bankruptcy court will take into account include:
O the conduct of the bankrupt’s spouse or former spouse so far as
contributing to the bankruptcy;
O the needs and financial resources of the spouse or former spouse;
O the needs of any children;
O all the circumstances of the case other than the needs of the
bankrupt.
4 In cases decided before the 1996 Act, the trustee in bankruptcy took
precedence over the bankrupt’s family and an order for sale was usually
ordered (Re Citro (a bankrupt) (1991)). Unusually, sale was delayed in
Re Holliday (1981) but in this case the husband had petitioned for bank-
ruptcy himself.
5 Exceptional circumstances under the Insolvency Act 1986 have been
construed in a very limited way (Nicholls v Lan (2007)). In Barca v
Mears (2005), a bankrupt unsuccessfully argued that the special educa-
tional needs of his son were exceptional circumstances under s 335(A)
Insolvency Act 1986. He also argued that the interpretation of ‘excep-
tional circumstances’ was contrary to Article 1 of the First Protocol and
Article 8 of the European Convention on Human Rights. It was held
that these rights were not absolute and in most cases sale will be neces-
sary for the protection of the rights of others. In this case, the needs of
the creditors could only be protected by sale.
Key Cases Checklist

The effect o f a tru s t o f land

Bull V Bull (1955)
A beneficiary under a trust has a right to occupy the property
The purpose o f the tru s t

Re Buchanan-Wollaston's Conveyance (1939); Jones v Challenger
(1961)
Sale of property held on trust for sale can be delayed while the purpose
of the trust exists
Sale under the T rusts o f Land and A pp ointm en t o f Trustees A ct

1996
Mortgage Corporation v Shaire (2001)
The court has a greater degree of flexibility when considering whether or
not to postpone sale under s 15 TOLATAthan under the old law
Rodway V Landy (2001)
s 13 TOLATA allows the court to partition trust property
Bank o f Ireland Home Mortgages v Bell [2001 ]
In exercising its discretion whether or not to order sale it should always
be a ‘powerful consideration’ whether a secured creditor was receiving
proper consideration for being kept out of his money
Payment o f rent by a co-tenant

Dennis V McDonald (1982)
A co-tenant is entitled to rent from the co-tenant if the threat of violence
forces them to leave the trust property
B ankruptcy
Re Citro (1991)
Exceptional circumstances under the Insolvency Act 1986 does not
include young children and the need to change schools
Re Holliday {1981)
Sale can be delayed under the Insolvency Act 1986 where the husband
petitioned for bankruptcy himself
Barca vM ears (2005)
Nicholis V Lan (2007)
9.4.3 Bull v Bull [1955] 1 QB 234

CA
Key Facts
Property was purchased jointly between a mother and her

son in the name of the son. Contributions were unequal but
it was accepted that the son held the equitable estate as
trustee on behalf of them both as tenants in common. They
lived in the property together, but later when the son married
he asked his mother to leave. It was held that the mother as
a co-owner under a trust had a right to live in the property.
Key Law
Co-owners are both entitled to occupy and enjoy land. This

right cannot be denied to one co-owner by the other
co-owner. So, a beneficiary under a trust had the right to
occupy the property whilst the trust subsisted. This case
was decided before the Trusts of Land and Appointment
of Trustees Act (TOLATA) 1996. Under the old law, trusts
for sale placed an obligation on the trustees to sell the
property. Today, the trust of land places no such obligation;
however, even under a trust for sale, the beneficiaries had
the right to remain in the property until sale.
Key Judgment
Denning MR
‘(T)he son, although he is the legal owner of the house, has
no right to turn his mother out. She has an equitable interest
which entitles her to remain in the house as tenant in
common with him until the house is sold.’
9.7.5 Re Buchanan-Wollaston’s Conveyance [1939]

Ch 738 CA
Key Facts
Four owners who were all neighbours joined together to

buy a piece of land that they wanted to keep as an open
space. The land was conveyed to them as joint tenants.
One of the four wanted to sell the land and the other three
resisted the application.
Key Law
Under the law at the time, the land was held under a trust
for sale. Sale could be delayed whilst the original purpose
of the trust existed and it was held that as long as three of
them wanted to keep the land, the purpose of the original
trust for sale still subsisted.
9.7.5 Jones v Challenger [1961] 1 QB 176 CA
Key Facts
After their marriage had broken down, the wife sought an

order for sale of the former matrimonial home; the husband
defended the claim, arguing that the purpose of the trust
still existed – namely to provide a home for the parties to
the marriage. The court made an order for sale on the basis
that this purpose no longer existed.
Key Law
Under the law pre-1996, applications to the court for an

order for sale were governed by consideration of whether
or not the purpose behind the trust still subsisted.
9.7.5 Bedson v Bedson [1965] 2 QB 666 CA
Key Facts
A property was purchased in joint names of a husband and

wife to provide a home for them both, and also premises for
the husband’s drapery business. The purchase price was
wholly provided by the husband. On the breakdown of the
marriage the wife sought an order for sale through the court.
Key Law
The court refused to order sale on the basis that the original
purposes of the trust still subsisted, namely to provide
premises for a shop and also living accommodation for
them both.
9.7.5 Re Evers Trust [1980] 1 WLR 1327

CA
Key Facts
A couple purchased a family home. They were unmarried

and they lived with one son of the relationship and two sons
from the woman’s previous marriage. When the relation-
ship broke down, the court postponed an order for sale.
They held that sale might be ordered where the wife
remarried or when she was in a position to buy the man’s
share in the property or when the child of the relationship
reached 18.
Key Law
Sale was postponed in this case because the original

purpose of the trust was still being carried out – namely to
provide a home for the children.
Key Comment
The previous cases were all decided on the law as it existed

before the 1996 Act. In Mortgage Corporation v Shaire
(below), Neuberger J considered their relevance in the light
of the new act. He concluded that it would be wrong to
‘throw over the wealth of learning and thought given by so
many eminent judges’ but the law had undergone an impor-
tant change and so there could be dangers in relying on
earlier authorities. He concluded that these cases were to
be treated with caution.
9.7.9 Bank of Ireland Home Mortgages v Bell [2001]

2 All ER 920 HC
Key Facts
The court ordered the sale of property although there was

still a minor living there and the original purpose to provide
a family home had not been discharged.
Key Law
Although under s 15 TOLATA 1996 no one factor is to be

considered by the court above all others, the court held that
the interests of the secured creditors and whether or not
they were entitled to their money was a powerful

consideration.
9.7.9 Mortgage Corporation v Shaire [2001] Ch 743 HC
Key Facts
Mrs Shaire and Mr Fox purchased a house in joint names

as tenants in common with Mrs Shaire owning a 75 per cent
share and Mr Fox a 25 per cent share. Mr Fox secretly took
out a mortgage, forging Mrs Shaire’s signature. Mr Fox
later died and the mortgagees sought an order for sale to
realise his share of the property. In applying s 15 TOLATA
1996 and having considered the interests of any secured
creditors, the court postponed sale.
Key Law
Under s 15 TOLATA 1996, the court has a greater degree of

flexibility when considering whether or not to postpone sale
of the property.
Key Judgment
Neuberger J
‘The 1996 Act has the effect of rendering a trust for sale
obsolete, including those in existence on January 1 1997,
and replacing them with the less arcane and simpler trusts
of land.’
Key Problem
Consider whether the courts might choose to rely on earlier

authorities where the facts are closer such as Eves v Eves
and Jones v Challenger rather than the special circum-
stances of Mortgage Corporation v Shaire.
9.4.3 Rodway v Landy [2001] Ch 703 CA
Key Facts
A partnership between two doctors was wound up. The

doctors owned their premises jointly and one doctor,
Dr Rodway, sought an order that the premises be sold, but

his partner, Dr Landy, wished to continue in practice and

sought an order under s 13 TOLATA 1996.
Key Law
The Court of Appeal held that they had power under s 13 to

make an order allocating different parts of a building for
exclusive occupation by different beneficiaries, particularly
as the premises were such that they could be partitioned
and split between the two partners. They also found that it
was possible under the section to require a beneficiary to
pay any costs needed to make the physical separation
possible.
Key Judgment
Gibson LJ
‘On any footing section 13 allows the trustees to divide a
building subject to a trust of land between two out of
three or more beneficiaries entitled to occupy, and also,
if I am right, between the only beneficiaries entitled to
occupy. It would be surprising if the cost of adapting the
building to make each part suitable for separate occupation
of the beneficiary could not be imposed on the
beneficiary.’
9.7.8 Dennis v McDonald [1982] Fam 63 HC
Key Facts
The claimant had been forced to leave the family home

because of the violence and threatened violence of the
defendant. She was therefore unable to exercise her right
as a co-owner to occupy the family home. The defendant
was ordered to pay her an occupation rent equivalent to
half the fair rent for an unfurnished letting.
Key Law
It was held that he had to pay her compensation since she

was denied the right to occupy the property a right that all
co-owners have. However, where tenants in common
choose not to exercise their right to occupy property, they
are not entitled to claim rent from their co-tenant. In cases
where the tenant in common is unable to enjoy the property
because she has, in the circumstances, been excluded

from the matrimonial home, then unusually rent may be

ordered from the co-tenant still in occupation.
Key Judgment
Purchas J
‘Therefore the basic principle that a tenant in common is
not liable to pay an occupation rent by virtue merely of his
being in sole occupation of the property does not apply in
the case where an association similar to a matrimonial
association has broken down and one party is, for practical
purposes, excluded from the family home.’
9.8.4 Re Citro [1991] Ch 142 CA
Key Facts
An application was made for sale against the jointly owned

family home by a trustee in bankruptcy. The wife applied for
the sale to be deferred on the basis that the children were
young and, as a consequence of the sale, would be forced
to move schools. The court considered s 335A of the
Insolvency Act 1986, which lists the matters that the court
has to consider before making an order for sale. These
included the interests of the husband’s creditors, the
conduct of the spouse or former spouse, the needs and
financial resources of the spouse or former spouse, the
needs of any children and all the circumstances of the case
other than the needs of the bankrupt. However, after one
year the court must assume that the needs of the creditors
outweigh all other considerations unless the circumstances
of the case are exceptional.
Key Law
The age of the children and the fact that they had to change
schools were not seen to be exceptional circumstances
under s 335A of the Insolvency Act 1986 and so an order
for sale was made.
Key Judgment
Nourse LJ
‘Where a spouse with a beneficial interest in the matrimo-
nial home has become bankrupt under debts that cannot
be paid without the realisation of that interest, the voice of

the creditors will usually prevail over the voice of the other
spouse and a sale of the property ordered within a short
period. The voice of the other spouse will only prevail in
exceptional circumstances.’
9.8.4 Re Holliday (A bankrupt) [1981] Ch 405 CA
Key Facts
The matrimonial home was owned jointly by a husband and

wife. The husband left the wife and she continued to live in
the property with their three children. He then petitioned for
his own bankruptcy and the husband’s trustee in bank-
ruptcy sought an order for sale.
Key Law
The Court of Appeal accepted that there were exceptional

circumstances and exercised its discretion by refusing an
order for sale. The exceptional circumstances included the
fact that there were very young children, the husband had
petitioned for his own bankruptcy and his creditors could
all be paid without having to sell the property.
9.8.5 Barca v Mears [2005] 2 FLR 1 HC
Key Facts
A bankrupt argued that the special educational needs of his

son were exceptional circumstances under s 335(A)
Insolvency Act 1986. He also argued that the interpretation
of ‘exceptional circumstances’ was contrary to Article 1 of
the First Protocol and Article 8 of the European Convention
on Human Rights.
Key Law
It was held that these rights were not absolute and in most
cases sale will be necessary for the protection of the rights
of others. In this case, the needs of the creditors could only
be protected by sale.
9.8.5 Nicholls v Lan [2007] 1 FLR 744

HC
Key Facts
The bankrupt’s wife was a chronic schizophrenic and

moving from her home was likely to cause her extreme diffi-
culty. Nevertheless, although it regarded these factors as
exceptional, the court only delayed an order for sale for
18 months rather than indefinitely.
The court balanced the wife’s needs with the fact that there
were no children of the family and the need for the creditors
to be paid sooner rather than later.
Key Law
This case suggests that the courts will construe excep-

tional circumstances very narrowly.
9.5.2 City of London BS v Flegg [1988] AC 54

(above) HL
Key Facts
Here, property was purchased in the name of a daughter

and her husband. Her mother and father had also both
contributed money but their rights took effect in equity. The
husband took out a mortgage that he could not repay and
the building society sought to sell the property. The rights
of the parents were transferred to the capital monies, which
had been dissipated by the son-in-law, so they were left
with nothing.
Key Law
The rights of co-owners can be transferred from rights in

the land to rights in the rents and profits arising on sale.
Their rights are said to be overreached and this will only
occur where there are two trustees of land (s 27(1)
LPA 1925).
Key Problem
Consider how this case affects the beneficiaries’ statutory

right to occupy under a trust of land.
Key Link
Overreaching will only apply where there are two trustees.

Reconsider Williams & Glyn’s Bank v Boland (1981) under
registered land (Chapter 4) where Mrs Boland’s rights were
not overreached because the capital monies were paid to a
sole owner – namely Mr Boland.
10 Easements
C haracteristics The grant o f an easement

Re Ellenborough Park: a) Express grant:
• Must be dominant/servient • conveyance;
tenement; • statute.
• must accommodate the dominant b) Implied grant:
tenement; • necessity;
• dominant/servient tenement must • common intention;
be owned by different persons; • s 62 LPA 1925;
• easement must be capable of • Wheeldon V Burrows
forming the subject matter of the (quasi-easements)
grant, e.g. not exclusive use.
c) Prescription:
• common law;
• lost modern grant;
• Prescription Act 1832.
EASEMENTS AND r
Legal and equitable easem ents
PROFITS A PRENDRE
Legal easements:
• must be granted by deed for the
equivalent of a legal estate (no
Extinguishm ents o f deed necessary for implied
easements easements or easements under
prescription);
• Extinguished • must be registered if registered
• Released land even where the easement is
• Abandoned legal.
Equitable easements:
P rofits a prendre: • must be registered to take effect
in law;
• a right to take something from the • where a legal easement does not
land; satisfy the necessary formalities
• can exist without owning land; the easement will take effect in
• can be created expressly, impliedly equity only;
(not under the rule in Wheeldon v • an equitable easement must
Burrows), by statute and conform with s 2(1) LP(MP) Act
prescription. 1989.
134 Easements
Z 10.1 Key characteristics of an easement

1 An easement allows a landowner the right to use the land of another. It

can be positive, e.g. a right to use a path over their land, or negative (not
requiring any action by the claimant), e.g. a right to light.
2 An easement is a right that attaches to a piece of land and is not personal
to the user.
3 The defining characteristics of an easement are laid down in
Re Ellenborough Park (1956):
O There must be a dominant tenement (land to take the benefit) and
a servient tenement (land to carry the burden).
O The easement must accommodate the dominant tenement – this
means that the right must benefit the land and not benefit the land-
owner personally (Hill v Tupper (1863), Moody v Steggles (1879)).
O The essence of an easement is ‘that it exists for the reasonable and
comfortable enjoyment of the dominant tenement’ (Moncrieff v
Jamieson and Others (2007): Lord Hope).
O The two plots of land should be reasonably close to each other (Bailey
v Stephens (1862)).
O The dominant and servient tenements must be owned by different
persons (you cannot have an easement over your own land but a
tenant can have an easement over his landlord’s land);
O The easement must be capable of forming the subject matter of the
grant:
a) there must be a capable grantor and grantee, i.e. people who can
grant and receive the benefit of an easement;
b) it must be sufficiently definite, e.g. you cannot have an
easement of a good view (Aldred’s Case (1610)) or an easement
of good television reception (Hunter v Canary Wharf (1997));
c) the right must be within the general nature of the rights
traditionally recognised as easements (Dyce v Lady James Hay
(1852));
d) the right must not deprive the servient owner of all enjoyment
and control of his property.
4 According to Lord Scott in Moncrieff v Jamieson (2007), the key issue
is not whether the alleged easement permits the servient owner reason-
able use of their land, but whether the alleged easement permits the
servient owner possession and control of his land. An easement must
not prevent any use by the landowner of his land but an easement may
Other features of easements 135
be upheld even if it severely limits the potential use of the servient land-
owner’s property (Virdi v Chana and Another (2008)).
Z 10.2 Other features of easements

1 The right must not impose any positive burden on the servient owner.
Note: The duty to fence and to keep a fence in repair is an exception
(Crow v Wood (1971)).
2 An easement must not amount to exclusive use (Copeland v Greehalf
(1952)). Storage in a cellar was held to be exclusive use in Grigsby v
Melville (1972) because it was a right to unlimited storage within a
confined or defined space. Compare Wright v Macadam (1949), where
an easement was upheld for a tenant who kept coal in a shed, preventing
the landowner from any enjoyment of the shed for himself. The right
was upheld because the landlord was not substantially prevented from
general use of his property.
3 The right to park can be an easement so long as it is not exclusive use of
the property and does not deprive the owner of use of his/her property
(Batchelor v Marlow (2001)). In London & Blenheim Estates Ltd v
Ladbroke Retail Parks Ltd (1992), it was held that parking in a general
area or for a limited period of time could constitute an easement. Parking
in a designated space may also be upheld.
4 In Moncrieff v Jamieson (2007), it was held that an easement of a right
to park could be ancillary to a right of vehicular access if it was necessary
for the enjoyment of the easement of access. It was sufficient that it
might have been in contemplation at the time of grant, having regard to
what the dominant proprietor might reasonably be expected to do in the
exercise of his right to convenient and comfortable use of the property.
5 The courts have been unwilling to extend the list of rights capable of
existing as easements, although it has been said that easements must
adapt to current conditions (Dyce v Lady James Hay (1852)).
6 Where an easement is created expressly, increased use will be acceptable
but, where use becomes excessive, that use ceases to be acceptable. In
Jelbert v Davis (1968) a right of way over a driveway was granted to a
farmer. He converted part of his farm into a caravan park. Use of the
right of way by the caravan owners was acceptable but use by 200 cara-
vans was excessive as it could cause substantial interference with the use
of the land by the servient owner.
136 Easements
Z 10.3 The grant of an easement

An easement can arise in three different ways:

O express grant;
O implied grant;
O prescription.
10.3.1 Express grant

1 An express grant of an easement arises through the use of express words
incorporated into a formal transfer of rights, e.g. a purchaser may be
granted a right of drainage or a right of way.
2 If the grant is incorporated into a deed, it will take effect at law. This
may be part of a deed of transfer or a lease.
3 Easements can also arise through estoppel where the grantee has relied
on a promise of rights and acted to his/her detriment (Crabb v Arun
District Council (1976)) and such rights will be implied into a deed and
so take effect at law.
4 Easements can also be expressly granted by statute, e.g. the grant is
made in favour of privatised utilities such as the supply of gas or water,
or the power to lay sewers.
5 As an easement is an interest in land, it can only take effect in law where
the grant complies with s 52 Law of Property Act 1925 (i.e. a deed is used).
If a written document is used that is not a deed, the right may arise as an
equitable easement or a mere licence. An equitable easement usually
requires registration in order to be binding on a third-party purchaser.
10.3.2 Implied grant

1 The grant of an easement can be implied into the deed of transfer
although not expressly incorporated.
2 An implied easement will take effect at law because it is implied into the
transfer of a legal estate.
3 In registered land the easement may take effect as a right that overrides
on transfer, although the LRA 2002 has reduced the circumstances for
this.
4 Any easement that is the subject of an implied grant must conform to
the characteristics of an easement laid down in Re Ellenborough Park
(1956).
The grant of an easement 137
5 Categories of implied grant:

a) Easements of necessity:
O generally imply a right of access;
O are allowed because without the easement the land would be
incapable of use;
O are not available where an alternative route would simply be
inconvenient (Nickerson v Barraclough (1981)), only if the
alternative access is totally unsuitable for use;
O are not available to a landowner in order to carry out repairs. The
Access to Neighbouring Land Act 1992 gives a neighbour the
right to seek a court order to gain access to his neighbour’s land
in order to carry out essential repairs. This is not automatic and
must be applied for through the court. Once granted, the right is
capable of registration.
b) Easements of common intention:
O Such rights arise because they are necessary in order for the partic-
ular use intended for the land. The use is presumed to be within
the intention of the parties but the rights necessary for that use
have not been expressly included in the grant of land. Where these
rights are excluded, they will be impliedly incorporated into the
agreement and will be enforceable by the claimant (Wong v Beau-
mont Property Trust Ltd (1965), Stafford v Lee (1993)).
O There must be evidence of common intention of the parties, but
the use need not be necessary for the enjoyment of the property.
O There is some overlap between easements of common intention
with easements of necessity.
c) The rule under Wheeldon v Burrows (1879) provides that where a
landowner X divides his land into two plots and sells one part of his
land over which he/she has enjoyed a right but retaining one part for
himself, the purchaser Y acquires those rights over the land retained
by X.
O Certain requirements must be satisfied:
i) must be continuous and apparent (means the right must be
discoverable on careful inspection) and enjoyed over a
substantial period of time;
ii) must be reasonably necessary for the enjoyment of the
property;
iii) must be in use at the time of the sale.
138 Easements
O The rule in Wheeldon v Burrows converts quasi-easements into

easements. Quasi-easements are those easements that a land-
owner enjoys over his own land. Such rights are converted by
implied grant on division of the property.
O Easements arising under the rule will take effect as legal
easements.
O Under Re Ellenborough Park (1956), a landowner cannot enjoy
an easement over his own land but quasi-easements can become
true easements under the rule in Wheeldon v Burrows.
O The law is inconclusive as to whether the right claimed must be
both continuous and apparent and also necessary for the reason-
able enjoyment of the property.
O In Wheeler v JJ Saunders Ltd (1995), the claimants failed
because the right was not reasonably necessary for the enjoyment
of the property. The claimant also failed in Millman v Ellis (1996)
because both requirements were not satisfied. Compare with
Hillman v Rogers (1998) where the court held that a right could
be claimed under the rule in Wheeldon v Burrows even where it
was not reasonably necessary for the enjoyment of the property.
d) Easements under s 62 LPA 1925:
O Under s 62, certain rights can automatically be implied into a
conveyance of property, irrespective of whether the parties have
agreed that the rights will pass, e.g. a licence between a landlord
and a tenant may automatically become binding as an easement
on a fresh conveyance of a lease or the purchase of the freehold
(Wright v Macadam (1949)). Any right that exists for the
benefit of land can pass as an easement under s 62.
O The section applies unless it has been expressly excluded.
O The section has been interpreted to create new legal easements
as well as to transfer rights that are already in existence (Interna-
tional Tea Stores v Hobbs (1903), where a licence was converted
into an easement).
O There must be prior diversity of occupation (Sovmots Investments
Ltd v Secretary of State for the Environment (1979)) although the
section has been applied occasionally without this requirement
P & S Platt v Crouch [2003]. This contrasts with the require-
ments for the operation of the rule in Wheeldon v Burrows.
O Limitations on the operation of s 62:
The grant of an easement 139
i) Section 62 operates only on a formal conveyance of a legal

estate (e.g. it does not operate in relation to an oral lease).
ii) The right must come within the definition of an easement, so

it must not be for personal use only.
iii) Section 62 will not pass a right that was only intended to be
temporary (Wright v Macadam (1949)).
iv) Section 62 will not create an easement if it does not satisfy
the requirements in Re Ellenborough Park (1956), e.g. it
must not be too vague.
10.3.3 Prescription
1 Easements can be acquired by use over a long period of time, called
prescription.
2 The easement becomes annexed to the land as a legal easement if the
rules necessary for prescription are satisfied.
3 No formalities are necessary to pass the right; it simply requires proof of
long use.
4 There are three forms of prescription:
O common law prescription;
O the fiction of ‘lost modern grant’;
O under the Prescription Act 1832.
5 Certain rules apply to all types of prescription:
O the use must be ‘as of right’, because it is based on the assumption
that the right has been passed to the landowner at some time in the
past;
O the use must be nec vi (without force), nec clam (not exercised in
secret), nec precario (without permission from the landowner –
permission would suggest that the use was not ‘of right’).
6 Common law prescription presumes that there has been continuous use
since ‘time immemorial’ (set at 1189), but it can be defeated by proof
that the use of the right could not be exercised at any time since 1189.
The claim is rarely successful.
7 The doctrine of ‘lost modern grant’ supplements common law prescrip-
tion by allowing an easement to be granted if there is evidence of contin-
uous use for 20 years (Mills v Silver (1991)). The 20-year period does not
have to be immediately before the claim.
140 Easements
O It cannot be used if there was no one who could have made the
grant.
O The court accepts that the original grant must have been lost at
some date, but this is a legal fiction so actual proof of the grant is
required.
8 The Prescription Act 1832:
O Generally regarded as the worst drafted Act of Parliament ever!
O There are two periods under the Act for the acquisition of easements
by prescription: the short period of 20 years and the long period of
40 years.
O Rights acquired under the long period are deemed to be ‘absolute
and indefeasible’ unless permission was granted in writing or by deed.
O Rights acquired under the short period cannot be defeated by
evidence that the use commenced after 1189.
O All rights acquired under Prescription Act 1832 must be nec vi
(without force), nec clam (in secret) and nec precario (without
permission).
O They must also satisfy the characteristics of an easement, so a purely
personal right could not be acquired prescriptively.
O Under the Prescription Act, the period relied on must be the ‘next
before action’. In Tehidy Minerals Ltd v Norman (1971), claims based
upon use that ceased in 1941 (because the land had been acquired by
the army as part of the war effort) could not be relied on because it
did not immediately precede the claim in the courts.
O Any evidence of interruption will defeat a claim under the Prescrip-
tion Act.
9 Under s 3 of the Prescription Act, easements for light can be claimed
through proof that there has been actual enjoyment of access to light for
20 years without interruption.
O The right will then be absolute and indefeasible.
O Proof that it was enjoyed through permission results in the loss of the
right.
10 In 2011, the Law Commission proposed reform of the law on easements,
in particular the rules of prescription. The main proposal is that all
existing methods of prescription should be abolished and replaced with
one single statutory method of acquiring an easement through
prescription.
Legal and equitable easements 141
10.3.4 The reservation of easements

1 The reservation of an easement arises where a landowner splits his land

into two parts.
2 It is the opposite of a grant of an easement because the vendor reserves
to himself the right to use that part of the land he/she sells to the
purchaser.
3 A reservation can be either express or implied, although the law will
only imply a reservation in very limited circumstances.
4 An express reservation will be put into the document of transfer.
5 The reservation is generally construed against the vendor, although
some case law suggests this is not always the approach of the courts (St
Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2)
(1975)).
6 An implied reservation is only allowed in two cases:
a) necessity; and
b) common intention.
7 Cases of implied reservation of easements are very rare.
Z 10.4 Legal and equitable easements

1 Easements may take effect in equity or at law.
2 Legal easements must satisfy rules concerning their duration and also
the way they are created.
O Section 1(2) LPA 1925: legal easements must be granted for a period
equivalent to a legal estate in land, either a fee simple absolute in
possession or a term of years absolute (an easement granted ‘for life’
can never be a legal easement).
O Section 52 LPA 1925: all legal easements must be created by deed.
Where no deed is used the grant may take effect in equity.
O No deed is necessary where rights are acquired by prescription. Ease-
ments that are implied (e.g. by the rule in Wheeldon v Burrows) are
implied into the deed conveying the estate hereby arising at law.
3 An easement can take effect in equity if the requirements for a legal
easement are not satisfied.
4 The creation of an equitable easement must conform to s 2(1) LP(MP)A
1989.
142 Easements
5 Under the LRA 2002, equitable easements are no longer overriding.

They must be registered as minor interests (or a burden on the register)
if they are to be binding.

6 The purchaser may take free of an equitable easement if it has not been
registered and it does not fall within the category of easements that
override under Schedule 3 paragraph 3 LRA 2002.
Z 10.5 The transfer of easements

1 Easements affect both the dominant (carrying the benefit) and servient
(carrying the burden) tenement and can pass to third parties.
2 The transfer of the benefit and the burden of an easement will depend
on whether it has been created at law or in equity.
10.5.1 The transfer of the benefit and burden

of an easement at law
Registered land
1 The transfer of the benefit of an express legal easement in registered
land requires an entry in the Property Register of the land carrying the
benefit.
2 Easements acquired by prescription can also be entered in the Property
Register once the Land Registrar is satisfied about their validity.
3 The transfer of the burden of an easement in registered land depends on
the registration of the right in the Charges Register of the servient land,
i.e. the land carrying the burden of the easement.
O An easement is a minor interest (or burden on the register) and so
will not be binding until it has been entered on the register.
O Even if it has not been registered, a legal easement may still be
binding as a right that overrides the transfer under Schedule 3 Para 3
LRA 2002. This applies in very limited circumstances.
Unregistered land
1 In unregistered land, the burden of a legal easement was automatically
binding on the owner of the burdened land. It did not require
registration.
The transfer of easements 143
2 The benefit of a legal easement was automatically binding as a legal right

in land if it had been created according to s 52 LPA 1925.
10.5.2 The transfer of the benefit and burden

of easements in equity
Registered land
1 The transfer of the benefit of an equitable easement either passes
impliedly under s 62 LPA 1925 or expressly.
2 The transfer of the burden will depend on whether the land is registered
or unregistered.
3 In registered land, the burden of equitable easements must be noted on
the Charges Register of the relevant servient title.
4 The LRA 2002 has had considerable impact on the law relating to
easements:
O the benefit of expressly registered easements and profits will have to
be registered to be legal under s 27(1);
O all equitable easements cease to be overriding;
O the burden of an easement will rarely be capable of existing as an
overriding interest;
O the position differs as to whether it is a first or a subsequent
registration;
O on first registration, all legal easements and profits (but not equitable
easements) are overriding interests under Schedule 1(3);
O on a subsequent registration under s 27 LRA, all expressly created
easements must be registered to be protected;
O only implied easements can be overriding and only in limited circum-
stances – i.e.
i) it is registered under the Commons Registration Act 1965; or
ii) the purchaser knew of its existence; or
iii) the purchaser did not know of it but it would have been obvious
on a reasonably careful inspection of the land over which it is
exercisable; or
iv) even if it does not fall within the exceptions, it must have been
exercised within the period of one year ending with the date of
the disposition in question.
144 Easements
Unregistered land
1 In unregistered land, an equitable easement must be registered as a Class

D(iii) land charge against the name of the estate owner who granted the
right in question.
2 Failure to register an equitable easement in unregistered land makes it
void against a purchaser for money or money’s worth.
3 The unregistered equitable easement may bind in unregistered land if it
is based on estoppel (ER Ives Investment Ltd v High (1967)).
Z 10.6 The extinguishment of easements

r
Extinguished
If the two plots of land come Into the same hands, the
easement will be extinguished and cannot be revived again
even if the land Is spilt in the future.
Released
The easement will cease If the owner of the dominant
land expressly gives up the right. This should be in
EASEMENTS
writing for a legal easement, but can be an informal
release for an equitable easement.
Abandoned
Lack of use will not affect the validity of the easement, but It will
cease If there Is evidence of a clear intention to abandon the
right. It may also be seen as abandoned If there Is a change in
circumstances making the right redundant.
Z 10.7 Profits à prendre

1 A profit à prendre entitles the holder to take something from another
person’s land, e.g. a right to fish or a right to take wood for fuel.
2 The rules governing profits are similar to the rules concerning
easements, but one or two features are different.
3 A profit differs from an easement because it can exist in gross, which
means it can be personal in nature and the owner does not need to own
an estate in land. A profit in gross (without ownership of land) can be
assigned and conveyed.
4 In registered land, a legal profit can rank as an overriding interest.

5 A profit need not be exclusive, so it can be enjoyed in conjunction with

others.
6 A profit can be created by express grant, implied grant under s 62 LPA
1925 (not the rule in Wheeldon v Burrows (1879)) and under statute and
prescription.
7 Profits can exist in law or in equity but for a legal interest they must
satisfy the rules, e.g. must be created for the equivalent of a legal estate.
8 An express grant must be completed by registration in the same way as
for easements.
9 It is possible in rare cases to acquire a profit by implied grant but only
under the rules relating to necessity, common intention and s 62.
10 The periods for the acquisition of a profit by prescription under the
Prescription Act 1832 are 30 years for the short period and 60 years for
the long period.
Key Cases Checklist
CHARACTERISTICS OF AN EASEMENT
Re Ellenborough Park (1956)
i) The dominant and servient tenement must be owned by two different
people
ii) The easement must accommodate the dominant tenement
iii) There must be a dominant and servient tenement
iv) The right must be capable of forming the subject-matter of a grant
Hill V Tupper (1863)
A right unconnected with the use of land cannot be an easement
Crow V Wood (1971)
Moody V Steggles (1879)
A benefit to land can include business use if it benefits the land, not the
business
Copeland V Greenhalf{\ 952)
Rights amounting to possession of land cannot be easements
Wright V Macadam (1949)
A right of storage can exist as an easement
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992)
The right to park can exist as an easement
Moncrieff V Jamieson and others (2007)
A right of vehicular access may carry with it a right to park if it was
necessary for the enjoyment of the easement
Virdi V Chana and another (2008)
An easement must not prevent any use by the landowner of his land but
an easement may be upheld even if it severely limits the potential use of
a landowner’s property
146 Easements
IMPLIED EASEMENTS
The rule in Wheeldon v Burrows

Wheeldon V Burrows (1879)
A quasi-easement can be converted into an easement if it is continuous
and apparent and it is necessary for the reasonable enjoyment of the
property and in use at the time of grant
s 62 LPA 1925
International Tea Stores v Hobbs (1903)
Licences can be converted into easements on the conveyance of land
Goldberg V Edwards (1950)
Any right for the benefit of land can pass as an easement under s 62
COMMON INTENTION
Wong V Beaumont Property Trust Ltd (1965)
An easement can be implied into an agreement in order to give effect to
the common intention of the parties with regard to the use of the land
Stafford V Lee (1993)
An easement of common intention could be implied for woodland where
the original deed showed the land could be used for housing
NECESSITY
Wheeler V JJ Saunders (1995)
A claim for an easement of necessity will fail if there is an alternative
means of access
ґ
PRESCRIPTION
Mills V Silver (1991)
An easement can arise under prescription if:
i) the use of the land is without force, secrecy or permission;
ii) it is enjoyed by a fee simple owner against another fee simple owner;
iii) the use is continuous
EXCESSIVE USE
Jelbert V Davis (1968)
If increased use is excessive than it will be restrained
10.3.2.4 Re Ellenborough Park [1956] Ch 131 CA
Key Facts
A number of owners of land claimed that the right to enjoy

a piece of neighbouring land for leisure purposes could
exist as an easement.
Key Law
This case establishes that a right can exist as an easement

if it satisfies the following conditions:
a) the owners of the dominant and servient tenements
must be two different people;
b) the easement must accommodate the dominant tene-
ment (it must provide a benefit to the land rather than a
personal advantage to the owner of the land);
c) there must be a dominant and servient tenement;
d) a right cannot amount to an easement unless it is
capable of forming the subject-matter of a grant.
10.1.3 Hill v Tupper (1863) 2 H & C 121 CA
Key Facts
The claimant, Hill, leased an area of land next to a canal. He

had the sole right to put boats on the canal. When the
defendant, Tupper, who owned an inn bordering the canal,
also put boats onto the water, Hill claimed that his rights
had been infringed.
It was held that the claimant did not have an easement but
merely a licence.
Key Law
A right that is unconnected with the use and enjoyment of

land cannot exist as an easement. The use in this case was
held to be personal to the landowner.
10.1.3 Moody v Steggles (1879) 12 Ch D 261 HC
Key Facts
The owners of a pub put up an advertising sign on the wall

belonging to a neighbouring house. Their claim that this
right existed as an easement was upheld.
148 Easements
Key Law
If an easement benefits land then the fact that the land is

used as a business cannot defeat the claim that it exists as
an easement.
10.2.2 Copeland v Greenhalf [1952] Ch 488 HC
Key Facts
A wheelwright unsuccessfully claimed that the right to store

vehicles awaiting repair on a narrow strip of land existed as
an easement.
Key Law
The right could not exist as an easement because the

claimant claimed rights over the whole strip of land, which
amounted to possession of the land itself.
Key Judgment
Upjohn J
‘I think that the right goes wholly outside any normal idea of
an easement, that is the right of the owner . . . of a domi-
nant tenement over a servient tenement. This claim . . .
really amounts to a claim to a joint user of the land by the
defendant.’
10.2.2 Wright v Macadam [1949] 2 KB 744 CA
Key Facts
The claimant was a tenant in an upper-storey flat in a

house. She claimed that the right to use the coal shed to
store her coal passed to her as an easement rather than
continuing as a mere licence on the renewal of her lease.
She was successful in spite of the possibility that it involved
the exclusive use of the shed.
10.2.3
London & Blenheim Estates Ltd v Ladbroke

Retail Parks Ltd [1992] 1 WLR 1278 HC
Key Facts
The claimant, who owned a large shopping centre, claimed

that his customers had the right to park on a central car
park and such a right could exist as an easement.
Key Law
The right to park on the land of another can exist as an

easement unless it would leave the servient owner without
any reasonable use of his land, whether for parking or
anything else.
10.2.3 Batchelor v Marlow [2001] EWCA Civ 1051 CA
Key Facts
An easement by prescription was claimed over the claim-

ant’s land by the defendants to park and store six cars
between 8.30 am and 6.00 pm Monday to Friday. There
was room on the land for only six cars. The Court of Appeal
found no easement existed because it would deprive the
owner of any reasonable use of his land.
Key Problem
It is difficult to reconcile Wright v Macadam with Copeland

v Greenhalf. These decisions were highlighted in the later
case of London & Blenheim Estates Ltd v Ladbroke Retail
Parks Ltd. Judge Paul Baker saw it is a matter of degree
whether a right that involved exclusive occupation of part of
the servient tenement could exist as an easement. He
suggested that a small coal shed in a large property was
one thing (Wright v Macadam) and the exclusive use of a
large part of the alleged servient tenement was another
(Copeland v Greenhalf).
150 Easements
10.1.3 Moncrieff v Jamieson and Others [2007]

1 WLR 2620 HL
Key Facts
The claimant lived on one of the Shetland Islands in

Scotland. He had a vehicular easement over his neigh-
bour’s land. He also claimed a right to park cars on the
servient land because, without this right, the easement
would have been ‘effectively defeated’.
Key Law
An easement of a right to park could be constituted as

ancillary to a servitude right of vehicular access if it was
necessary for the enjoyment of the easement of access. It
was sufficient that it might have been in contemplation at
the time of grant having regard to what the dominant
proprietor might reasonably be expected to do in the exer-
cise of his right to convenient and comfortable use of the
property.
10.1.4 Virdi v Chana and Another [2008] EWHC

2901 Ch
Key Facts
The occupiers of property had parked their car on adjoining

land for over 20 years and claimed a right under prescrip-
tion. The owners of the adjoining land challenged their
claim on the basis that it prevented them from use of their
own land and could not therefore lie in grant.
Key Law
It was held that the easement could take effect as the

amount of the landowner’s property that was claimed was
too small to be of practical use to him. Where the land-
owner has little value in use of his/her property, an ease-
ment that severely limits his/her potential use will not debar
the existence of an easement.
10.2.1 Crow v Wood [1971] 1 QB 77

CA
Key Facts
A right to have the servient land fenced, or a fence or wall

kept in repair, has been held to be an easement. In this form
it imposes an obligation on the servient landowner to take
positive action.
Key Link
See Chapter 11 Covenants, section 11.3. A positive cove-

nant cannot be enforced against a successor in title but it
may be enforceable as an easement of fencing.
10.3.2.5 Wheeldon v Burrows (1879) 12 Ch D 31 CA
Key Facts
A parcel of land was split between the owner and a

purchaser, Wheeldon. The owner sold part of his land,
which included a workshop, to Burrows. Hoardings were
erected on Wheeldon’s land that interfered with the light in
the workshop. Burrows maintained that the right to light
existed as an easement and so the hoardings must be
taken down.
It was held that an easement existed.
Key Law
The rule in Wheeldon v Burrows can convert a quasi-

easement into an easement when certain conditions apply:
a) the right must have been exercised by the owner
continuously and apparently, which means it must be
obvious to anyone that such a right is enjoyed (e.g. a
right of way);
b) the right must be necessary for the reasonable enjoy-
ment of the property;
c) the right must be in use at the time of grant.
152 Easements
10.3.2.5 Wheeler v JJ Saunders Ltd [1995] 2 All ER

697 CA
Key Facts
The claimants owned a farmhouse that had previously

enjoyed a right of access over the defendant’s land, as well
as an alternative means of access. The defendants built a
wall blocking off the right of way and the claimants argued
that they had an easement under Wheeldon v Burrows.
They were unsuccessful because they had an alternative
means of access.
Key Law
A claim for the grant of an easement under Wheeldon

v Burrows will fail if the claimant has an alternative means
of access. It will only succeed if the right can be shown
to be necessary for the reasonable enjoyment of the
property.
10.3.2.5 International Tea Stores Co v Hobbs [1903] 2

Ch 165 HC
Key Facts
The claimant bought the dominant tenement, which he had

previously leased from the defendant. Before the purchase,
he had permission to use a short-cut across the defend-
ant’s land. It was held that this right of use now existed as
an easement.
Key Law
Rights that exist as licences over neighbouring land can

become converted into easements when the land is
conveyed to the claimant. This is because the effect of s 62
LPA 1925 allows the grantee automatically to acquire the
benefit of an easement and any rights attaching to the land
that are listed in the section, even if they are not expressly
mentioned in the conveyance.
Goldberg v Edwards [1950] Ch 247 CA

Key Facts
The dominant land was owned by the defendants. They

granted a lease of an annex adjoining the land to the claim-
ants. The claimants moved into the premises and started
using the front door for access even before the lease had
been executed. Although there was an alternative means of
access, the claimants claimed that this right had passed to
them under the lease.
Key Law
Any right enjoyed for the benefit of land and that is capable
of existing as an easement will pass under s 62.
Key Problem
It is important when applying s 62 to distinguish between

those rights enjoyed for the benefit of the land, in which
case the right will pass, and rights that are personal to the
claimant, which do not pass either to the licensee or to a
third party when the land is conveyed.
Wright v Macadam (above)

In this case the right to store coal passed to the widow on
the renewal of her lease under s 62 even though the original
right was a licence. This was because the right of storage is
regarded as conferring a benefit on land and the court
regarded it as capable of existing as an easement.
10.3.2.5 Wong v Beaumont Property Trust Ltd [1965] 1

QB 173 CA
Key Facts
The claimant leased basement premises to be used as a

Chinese restaurant. The landlord knew it needed ventilation
to comply with public health regulations but he would not
allow the tenants to fix a duct on his land that would then
154 Easements
enable a ventilation system to be fitted. However, the court

held that this right existed as an easement and the landlord

could be forced to agree.
Key Law
The court will imply an easement where it is necessary to

give effect to the common intention of the parties to a grant
of land for the use of that land. The use must be definite at
the moment of the grant and not a mere possibility. In this
case the lease limited the use of the basement to a restau-
rant but it could not open as a restaurant without the use of
the ventilation system.
10.3.2.5 Stafford v Lee (1993) 65 P & CR 172 CA
Key Facts
An area of woodland and a pond were conveyed to the

claimant’s predecessors in title. This land fronted a private
drive that had access to the main road but the conveyance
did not mention any rights of access over the drive. The
claimant decided to develop the land and claimed an ease-
ment over the road. The defendants challenged this right,
arguing that an easement could not be inferred because the
land had only been used as a woodland and therefore did
not require a right of way for cars.
Key Law
As the original deed had been accompanied by a plan that

had shown use of neighbouring land for houses, such an
easement could be inferred here.
Barry v Haseldine [1952] Ch 832 HC
Key Facts
The purchaser bought land that was completely surrounded

by land belonging to the grantor and others. The purchaser
exercised access over a disused airfield with permission of
its owner but he had no legal right of access for his land.
Key Law
The court implied an easement of necessity over the gran-

tor’s land because the land purchased did not have an
independent right of access.
10.3.3.7 Mills v Silver [1991] Ch 271 CA
Key Facts
The defendants purchased a derelict farm and the only

access was a track across adjoining land that belonged to
the claimants. There was no express grant of this right but
the claimants were aware of it. Later, the claimants tried to
prevent the defendants from using the track. The court held
an easement had been acquired through prescription,
based on the doctrine of lost modern grant.
Key Law
For an easement to arise under prescription, three things

must be proved:
a) the right to use the land must be enjoyed without force,
secrecy or permission;
b) the use must be in fee simple, i.e. the right must be
enjoyed by a fee simple owner against an owner of fee
simple servient land;
c) the use must be continuous and this is a question of
degree.
10.2.6 Jelbert v Davis [1968] 1 WLR 589 CA
Key Facts
An easement had been acquired over agricultural land. The

original conveyance provided ‘the right of way at all times
and for all purposes over the driveway . . . leading to the
main road, in common with all other persons having the like
right’. At a later date, a change of use was granted allowing
the land to be used for caravans and camping. This consid-
erably increased the use of the access road.
156 Easements
Key Law
The increased use was excessive and an injunction

was granted restraining the use by the caravans and
campers although the previous, more limited, use was still
available.
11 Covenants
Covenants at law:
Running of the benefit:
• ‘touch and concerns’ the land;
• intention;
• covenantee has legal estate;
• transferee takes legal estate.
Transfers under: Remedies
• s 136 LPA 1925;
• s 56 LPA 1925; • Damages.
• Injunction - grounds:
• s 78 LPA 1925;
• Contracts (Rights of Third Parties) Act i) blatant disregard of rights;
1999. ii) extent of injury to rights;
iii) oppressive to grant
Running of the burden - cannot run
injunction;
(Austerberry V Oldham).
iv) can it be estimated in
Avoidance: money?
• indemnity covenants;
• rule in Halsall V Brizell·,
• lease;
• conversion from leasehold.
k.
RESTRICTIVE
r COVENANTS
Covenants in equity
Running of the burden (Tulk v Moxhay (1848)):
• must be negative;
• covenantee and covenantor must own
Discharge and
estates in land;
• must benefit the land; modification
• must be intention to bind. S 84, application to
Annexation: Lands Tribunal on four
• express; grounds:
• implied; • obsolete;
• statutory. • no practical benefit;
• agreement;
Assignment
• no injury suffered.
Building scheme 4
Running of the burden:

• purchaser must have notice;
• registered land - notice on Charges Register;
• unregistered land - Class D(ii) against name
of covenantor.
158 Covenants
Z 11.1 The nature of covenants

1 A covenant is an obligation entered into by deed that affects the use of

land for the benefit of another, e.g. a neighbour’s land is not to be used
for business purposes.
2 The agreement is made between the covenantee (who takes the benefit)
and the covenantor (who carries the burden).
3 The agreement is governed by the rules of contract as well as the rules of
property law:
O the contract is enforceable between the original parties, but under
the rule of privity of contract, a covenant at common law cannot
impose burdens upon a third party;
O the original covenantor continues to be bound by the covenant even
after he has left the property.
4 Equity has intervened to allow the burden of covenants to run in limited
circumstances.
Z 11.2 Covenants at law

1 Covenants at law can be traced back to the fourteenth century (Prior’s
Case (1368)). A positive covenant that a prior and his convent would
sing all week in the covenantee’s chapel was upheld, notwithstanding
the fact that there was no servient tenement to carry the burden. This
point was upheld in Smith and Snipes Hall Farm Ltd v River Douglas
Catchment Board (1949).
2 A covenant is enforceable at law even where the covenantor has no
estate in law, but the covenantee must have an estate in land that can
take the benefit.
11.2.1 The passing of the benefit at law

1 The covenant must ‘touch and concern’ the land – the covenant must
be for the benefit of the land and not merely for the personal benefit of
the covenantee (P & A Swift Investments v Combined English Stores
Group Plc (1989)).
2 There must have been an intention that the benefit should run with the
estate owned by the covenantee at the date of the covenant (Smith and
Snipes Hall Farm Ltd v River Douglas Catchment Board (1949),
presumed under s 78 LPA 1925).
Covenants at law 159
3 The covenantee must have a legal interest in the dominant land – no

benefit can pass where the original covenantee has an equitable interest
in the land.
4 The transferee of the dominant land must also take a legal estate in that
land – any legal estate in land will give the transferee the right to enforce
the covenant.
11.2.2 Transferring the benefit of covenants

at law
1 A covenant can be expressly assigned under s 136 LPA 1925 as a chose
in action, but it must be in writing. This is rare as there are other ways of
assigning the benefit that are more convenient.
2 Section 56 LPA 1925 allows the benefit of a covenant to pass to others
who, though not mentioned expressly in the conveyance, are expressed
to be those for whose benefit the covenant was made, e.g. plots 1–7 are
sold and a clause is added in plot 2 to pass the benefit of a covenant to
the owner of plot 2, but is worded to cover plots 3–7 as well.
3 Section 56 does not allow a benefit to be passed to future purchasers.
4 Section 78 LPA 1925 has been interpreted to be effective to pass the
benefit of a covenant to a third party if:
O the covenant ‘touches and concerns’ the covenantee’s land;
O the covenant was entered into after 1925;
O it is only for the benefit of owners for the time being.
5 The Contracts (Rights of Third Parties) Act 1999 has made extensions
to the rights of any third party to covenants entered into after May 2000:
O a person who is not a party to the contract can now enforce the
contract on his own behalf if either it expressly confers a benefit on
him, or the term purports to confer a benefit on him but does not
refer to him by name;
O it cannot be enforced if, on the proper construction of the contract,
it appears that the parties did not intend the benefit to be
enforceable;
O the third party must either be named or be referred to generically,
e.g. to X (owner of No. 2) and her successors, and the owners of
No. 3 and No. 4 (the neighbouring properties). As there is no
contrary intention shown, the contract will confer a benefit on the
owners of Nos 3 and 4.
160 Covenants
11.2.3 Transmission of the burden at law

1 Under common law the burden of a covenant cannot run with the
freehold land of the covenantor (Austerberry v Oldham Corp (1885)).
2 The rule has been criticised, but was confirmed in Rhone v Stephens
(1994): Nourse LJ – ‘the rule is hard to justify’ (Court of Appeal), but
Lord Templeman held it to be ‘inappropriate for the courts to overrule
the Austerberry case, which has provided the basis for transactions
relating to the rights and liabilities of landowners for over 100 years’
(House of Lords).
11.2.4 Avoiding the rule in Austerberry
I.T h e doctrine of mutual benefit 2. Chain of indemnity

and burden - if a purchaser takes covenants - the covenantor
certain benefits under the convey remains liable and can be sued
ance, then the purchaser cannot even after sale. However, if the
avoid the burdens of an associated original covenantor and each
covenant (the rule in H alsall v successive owner of the
B r/ze//(1957), Tito V Waddell (No. burdened land could obtain an
2) (1977). Must be a related burden appropriately worded indemnity
( Thamesmead Town L td v A llo te y covenant from his purchaser,
(2000). The defendant was relieved they can then recover the sum
of maintenance costs in respect of from their successor in title until
certain facilities because they liability falls on the occupier in
related to facilities that he did not breach. It fails if there is a break
use and he therefore derived no in the claim, e.g. death.
benefit.
V _
AVOIDING THE RULE IN AUSTERBERRY
Ґ '
3. Lease - the burden of both 4. Conversion of leaseholds
positive and negative covenants into freeholds - rarely used and
can run with leasehold land. It seen as artificial, but all the
may be better to retain the covenants under the lease will be
freehold and lease the property enforceable by the covenantee.
k. У
rather than sell it in order to
enforce positive covenants.
Covenants in equity 161
Z 11.3 Covenants in equity

11.3.1 The running of the burden in equity

The decision in Tulk v Moxhay (1848).
1 The claimant sold a vacant piece of land in Leicester Square to a
purchaser who had notice of a covenant restricting the use of the land
(the covenantor agreed to maintain the square as a garden). The
purchaser tried to build on the property.
2 It was held that the owners of the neighbouring benefited land had a
right in equity to enforce the covenant against the purchaser, because
he knew of the covenant when he bought the land and was therefore
bound by the covenant.
11.3.2 The rules derived from Tulk v Moxhay

1 The covenant must be negative.
O A restrictive covenant is a covenant that does not require the
expenditure of money (Rhone v Stephens [1994]; Norwich City College
of Further & Higher Education v McQuillin (2009)).
O Some covenants appear to be negative but are positive, e.g. not to let
the property fall into disrepair is a positive covenant. Maintenance of
the property would require expenditure of money.
2 At the date of the covenant, the covenantee must own the land to be
benefited by the covenant, and the covenantor must own an estate to
carry the burden (LCC v Allen (1914)).
3 At law, a covenant can pass even where the covenantor has no estate in
land, but the right would not pass in equity.
4 The covenant must benefit or accommodate the dominant tenement.
This means that it must affect the value of the land and must not be a
personal benefit to the owner of the land.
5 The parties must have intended the burden to bind the successors. It is
generally presumed that the burden was intended to run with the land
of the covenantor (s 79(1) LPA 1925). A contrary intention (i.e. that
successors in title are not to be bound) can be shown from the instru-
ment that initially created the restrictive covenant (Morrells v Oxford
United FC (2000)).
162 Covenants
11.3.3 The passing of the benefit of a

covenant in equity
1 The covenant must pass under one of the ways allowed by equity.
2 This was once fraught with legal technicalities, but today is relatively
straightforward.
3 There are three ways of passing the benefit in equity:
O annexation;
O assignment;
O a building scheme.
11.3.4 Annexation
1 This means that the benefit of a restrictive covenant is metaphorically
‘nailed’ or attached to a clearly defined area of land belonging to the
covenantee.
2 The benefit of the covenant will pass with the land at all subsequent
sales.
3 Express annexation occurs where there is an express intention in the
words of the covenant that the benefit should pass (Re Ballard’s Convey-
ance (1937)). Once it has been expressly annexed, the benefit of the
covenant will still pass to successors in title even on the division of the
land. In Rogers v Hosegood (1900), a covenant was granted to coven-
antees who enjoyed an interest in the land as mortgagees that ‘no more
than one house would be built on the land’. It was expressly stated in the
deed that the covenant was to ‘enure for the benefit of the mortgagees,
their heirs, and assigns and others claiming under them to all or any of
their lands adjoining or near to the premises’. It was held that this
showed an intention that the benefit of the covenant was annexed to
the land of the covenantee.
4 Implied annexation is rare but occurs when the intention to attach the
benefit is clearly implied in the circumstances of the case (Newton Abbot
Co-operative Society Ltd v Williamson & Treadgold Ltd (1952)).
5 Statutory annexation has made express and implied annexation far less
important because of the relative ease with which a covenant is annexed
under statute. In Federated Homes Ltd v Mill Lodge Properties Ltd
(1980), the restrictive covenant was deemed to pass under s 78 LPA
1925 once it was shown that the covenant ‘touched and concerned’ the
land. See also Crest Nicholson Residential (South) Ltd v McAllister
Covenants in equity 163
(2004) for a more recent interpretation of statutory annexation under

s 78 LPA 1925.
6 Under s 78, covenants are automatically annexed, making express

assignment and annexation less important.
7 Annexation will not be automatic where the parties include a contrary
intention in the conveyance, and expressly restricts the passing of the
benefit to successors in title (Roake v Chadha (1984)).
8 Pre-1926 covenants will not pass automatically with the land under s 78
(J Sainsbury Plc v Enfield LBC (1989)).
11.3.5 Assignment
1 Assignment differs from annexation because:
a) the covenant is annexed to the person (the landowner) rather than
the land;
b) it is made on subsequent transfers of the land, perhaps some years
after the making of the covenant, whereas annexation takes place
when the covenant is first made.
2 There should be a fresh assignment at each subsequent sale and the
chain of assignments should be unbroken.
3 The covenant must be taken for the protection or benefit of land owned
by the covenantee at the date of the covenant.
4 The assignment must be at the same time as the transfer of the
dominant land.
11.3.6 Scheme of development

1 A scheme of development allows the benefit of a covenant to pass
even though the seller (usually a developer) does not retain any servient
land.
2 Under a scheme of development, restrictive covenants are enforceable
against each current owner of land:
O it does not matter whether the covenant was made by the original
covenantee or a successor in title;
O the covenants must be registered either at the Land Registry or the
Land Charges Registry in order to be effective;
O under the LRA 2002, new covenants passing under a scheme of
development can only be registered at the Land Registry.
164 Covenants
3 Preconditions for a scheme of development were once very technical

and difficult to satisfy – Elliston v Reacher (1908):
a) both vendor and purchaser had to derive title under a common

vendor;
b) the vendor had laid out the estate in lots before selling the land and
the lots were all subject to the same restrictions;
c) the restrictions were intended by the common vendor to be for the
benefit of all the lots;
d) when each lot was purchased it was understood that the restrictions
were to benefit all the lots within the scheme.
4 Today, the conditions are much easier to satisfy:
O There must be an identifiable scheme, which means there must be a
defined area of land over which reciprocal obligations were intended
to be enforceable, but the area does not have to be laid out in lots
before a scheme can be found (Baxter v Four Oaks Properties Ltd
(1965)).
O It must be shown that all the purchasers bought property with the
intention to be bound by the covenants even if they did not buy from
a common vendor (Re Dolphin’s Conveyance (1970)).
Z 11.4 The passing of the burden in equity

1 The burden will pass in equity if the purchaser has notice of the covenant.
O In Tulk v Moxhay (1848) this meant actual notice because it was
decided before the property legislation of 1925.
O A purchaser for value of the legal estate without notice of the
covenant was not bound by the covenant.
2 Since 1925 it has depended on whether the covenant has been entered
at the Land Registry.
O In registered land, a ‘notice’ should be entered in the Charges
Register of the covenantor’s title.
O In unregistered land, the covenant should be registered against the
name of the covenantor as a Class D(ii) land charge (LCA 1972
s 2(5)).
3 Failure to register will render the covenant unenforceable even where
the purchaser has actual notice, i.e. the purchaser has been told that the
covenant exists, but finds there is no entry on the register concerning
the entry.
Remedies for breach of a restrictive covenant 165
Z 11.5 Discharge and modification of

restrictive covenants
1 Under s 84 LPA 1925 an application to discharge or modify a restrictive
covenant may be made to the Lands Tribunal.
2 The party applying must establish one of four grounds:
O the restrictive covenant should be deemed ‘obsolete because of the
changes in character in the neighbourhood’ or other relevant circum-
stances, e.g. if a former residential area now has mixed use then a
covenant against business use may now be obsolete (s 84(1)(aa));
O the covenant impedes a reasonable user and does not provide ‘any
practical benefit of substantial value or advantage to any person or is
contrary to the public interest’ (s 84(1)(a));
O those entitled to the benefit of the covenant have agreed to its
discharge or modification (s 84(1)(b));
O the discharge or modification will not injure the persons entitled to
the benefit of the covenant (s 84(1)(c)).
3 If the tribunal agrees to discharge or modify the covenant on any
grounds, it may order compensation to be paid to the owners of the
benefited land.
4 The fact that planning permission has already been granted for a devel-
opment does not mean that the Lands Tribunal will automatically
discharge a covenant in order to give effect to the planning permission
granted.
5 Refusal to discharge a covenant by the Lands Tribunal may be one way
that a development may be curtailed by concerned neighbours.
6 A restrictive covenant will no longer be enforceable where the land
comes into single ownership.
Z 11.6 Remedies for breach of a restrictive

covenant
1 If a claimant proves that a covenant has been broken then damages will
be available.
2 In some cases an equitable remedy (e.g. an injunction) will be sought
and the court will make the decision on the following criteria:
O Has there been a blatant disregard for the claimant’s rights?
O Is the injury to the claimant’s legal rights small?
166 Covenants
O Can the damage be estimated in money and can it be adequately

compensated by a small money payment?
O Will it be oppressive to the defendant to grant an injunction? In

Gafford v Graham (1998), an injunction was sought but refused and
£25,000 in damages was awarded, although it was argued that to
refuse an injunction was to ‘license future wrongs’.
3 An injunction will not be awarded automatically where there is a
breach of covenant (Jaggard v Sawyer (1995)). The court refused
to grant an injunction to demolish houses that had been built in breach
of a covenant because it would be ‘an unpardonable waste of much
needed houses’ (Wrotham Park Estate Co Ltd v Parkside Homes Ltd
[1974]).
4 Courts have been prepared to grant a mandatory injunction to demolish
a building (Wakeham v Wood (1982)). However, this is rare.
Z 11.7 The reform of covenants

1 As early as 1965 the Law Commission noted that most positive
covenants were unenforceable and the law should be reformed (Report
of the Committee on Positive Covenants Affecting Land 1965).
2 In 1984, proposals were made for a new ‘land obligation’ allowing
positive and negative obligations to be imposed on a piece of land.
O The rights would be either ‘neighbour obligations’ (for two neigh-
bours) or ‘development obligations’ (for multi-occupation).
O The rights would need registration and, once registered, would be
binding but would be enforceable only between the current owners
of the respective tenements.
3 It has also been suggested that covenants should be automatically
extinguished after a statutorily fixed period has expired. The Law
Commission suggested 80 years in 1991 (Transfer of Land: Obsolete
Restrictive Covenants). There would be a right to appeal by the owner of
the right.
4 The most recent proposals for reform of the law on covenants, ‘Making
Land Work: Easements, Covenants and Profits à Prendre’, were made
by the Law Commission in 2011. The Law Commission proposed that
freehold covenants should be replaced by a new scheme of land obliga-
tions. Such obligations could be either ‘positive’ or ‘negative’. The land
obligation could be registered and both the benefit and burden would be
registrable (as in the case of easements) and, once registered, successors
in title would be bound. The original parties would cease to be able to
Commonhold 167
enforce the right and liability would also cease on sale of the property.
All existing restrictive covenants would not be affected. The main
advantage of the new system would be the right to enforce a positive

covenant without having to rely on the complexities of the rule in Halsell
v Brizell or a chain of covenants.
Z 11.8 Commonhold
1 A further suggestion has been for a ‘commonhold scheme’ to allow rights
to attach to land within the scheme. This would allow both positive and
negative obligations to be enforceable.
2 The commonhold scheme, however, has limitations and could not have
been used to enforce obligations between two landowners as in the case
of Rhone v Stephens (1994) unless they are both members of the wider
scheme.
3 Commonhold allows landowners to own individual units of land, but
allows for joint ownership of common parts of the property.
4 Each individual owner is regarded as a unit holder and will own with
freehold title.
5 Each owner will also be a member of the commonhold association,
which will be a company limited by guarantee and will be registered as
the freehold owner of the common parts.
6 The rights and duties of the unit holders will be laid down in the
Commonhold Community Statement.
7 Commonhold will generally apply to new developments but can also be
used in relation to existing property if everyone agrees that it should
change to commonhold.
8 The commonhold system can be brought to an end:
O voluntarily with the consent of the unit holders; or
O compulsorily in the event of the association being unable to meet
its debts.
9 The main advantage of this system is that it vests responsibility for main-
tenance jointly in the hands of the association who acts on behalf of all
the members.
10 Commonhold has only restricted use and cannot apply widely to allow
the burden of freehold covenants to apply.
168 Covenants
Key Cases Checklist

THE NATURE OF COVENANTS

Austerberry V Corporation of Oldham (1885)
A burden cannot be enforced in law against a successor in title to the
covenantor
Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board (1949)
The benefit of a covenant will pass to successors if:
i) the covenant touches and concerns the land;
ii) the original covenantee had a legal estate;
iii) the successor has a legal estate;
iv) the benefit was intended to run.
P & A Swift Investments v Combined English Stores Group (1989)
A covenant guaranteeing the performance of covenants ‘touches and
concerns the land’
Roake V Chadha (1984)
The benefit of a covenant will not run if a contrary intention is shown
COVENANTS AT LAW
Rhone V Stephens (1994)
The original convenantor will continue to be bound by the burden of a
covenant
Halsall v Brizell (1957)
The burden of a covenant can run if the successor takes a benefit under
the covenant
COVENANTS IN EQUITY
Tulk V Moxhay (1848)
A burden of a covenant in equity will run against a successor if 1) it is
restrictive and 2) it is intended to run and 3) the successor has notice of
it and 4) it touches and concerns the land
LCC V Allen (1914)
The original covenantee must have owned land for a benefit to run
STATUTORY ANNEXATION
Federated Homes Ltd v Mill Lodge Properties Ltd (1980)
s 78 LPA 1925 allows the benefit of a covenant to be automatically
ânnexed to land
BUILDING SCHEMES ^
Elliston V Reacher (1908)
A covenant will run under a building scheme even where the original
covenantee does not retain any land
REMEDIES FOR BREACH OF COVENANT
Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1974)
The remedy for breach of covenant lies in equity and is discretionary
Wakeham v Wood (1982)
An injunction may be granted to demolish a single-storey building built in
breach of covenant
Jaggard v Sawyer (1995)
^Damages for breach of covenant are compensatory and not restitutionary
11.2.3.1 Austerberry v Corporation of Oldham (1885)

29 Ch D 750 CA
Key Facts
The claimant and defendant were successors in title to the

original covenantee and covenantor of a covenant that
contained an obligation to keep a road in good repair. It
was held that neither the benefit nor the burden had passed
at law.
Key Law
The law will not enforce a burden against a successor in

title to the original covenantor, although the original cove-
nantor himself will remain liable under the covenant.
Key Problem
How can the law ensure that essential covenants, which

benefit land, continue to be enforceable between neigh-
bours and their successors in title?
11.2.1 Smith & Snipes Hall Farm Ltd v River Douglas

Catchment Board [1949] 2 KB 500 CA
Key Facts
The defendants entered into a covenant with a number of

owners of land including the claimant’s predecessor in title,
Mrs Smith, agreeing to carry out works to limit the threat
of flooding by improving and maintaining the river bank.
The claimants wanted to enforce the covenant against the
defendants. This depended on whether the benefit of the
covenant had passed to them.
Key Law
The benefit of the covenant had passed to them as succes-

sors in title to the original covenantee because certain
requirements were fulfilled:
ac the covenant touched and concerned the land;
bc the original covenantee had a legal estate in the land
benefited;
170 Covenants
cc the successor in title had acquired a legal estate in the

land;
dc the benefit of the covenant was intended to run with the
land.
11.2.1.1 P & A Swift Investments v Combined English

Stores Group [1989] AC 632 HL
Key Facts
This case concerned leasehold covenants, but the prin-

ciples are relevant to freehold covenants. The defendant
acted as surety for a sub-tenant. It was questioned whether
assurances given by the surety that a sub-tenant would
perform covenants could run with the land.
Key Law
The House of Lords held that if the surety’s covenant is to

guarantee the performance of a sub-tenant’s covenants,
which touch and concern the land, then the surety covenant
‘must itself be a covenant that touches and concerns the
land’.
11.3.4.7 Roake v Chadha [1984] 1 WLR 40 HC
Key Facts
A restrictive covenant was executed between the parties in

1934. It stated that no more than one house would be built
on a plot of land and added ‘this covenant shall not enure
for the benefit of any owner or subsequent purchaser of any
part of the . . . estate unless the benefit of this covenant
shall be expressly assigned’. The issue was whether this
qualification prevented the benefit of a covenant from auto-
matically running with the land.
Key Law
The benefit of a covenant will usually run at law if the condi-

tions in Smith & Snipes Hall Farm Ltd v River Douglas
Catchment Board are complied with, but where there is a
contrary intention shown in the wording of the deed then the
benefit cannot pass. It is still possible for the parties to
require express assignment of a covenant, in which case it

must be assigned each time the property changes hands

and at the same time as each change of ownership occurs.
11.2.1 Prior’s Case (1368) YB 42 Edw III HC
Key Law
A positive covenant that a prior and his convent would sing

all week in the covenantee’s chapel was upheld, notwith-
standing the fact that there was no servient tenement to
carry the burden.
11.2.3.2 Rhone v Stephens [1994] 2 AC 310 HL
Key Facts
A roof that was only accessible from the covenantor’s

house overhung the covenantee’s property. The original
covenantor had sold the property and his successor in title
refused to undertake repairs as agreed under the covenant.
The House of Lords refused to enforce the positive burden.
An argument that the obligation on the owner of the house
to maintain the roof was a burden linked with the benefit of
rights of support from the neighbouring cottage failed.
Key Law
The successor in title to the original covenantor will not be

bound in law by covenants entered into with a covenantee.
The original covenantor will continue to be bound and, if he
can be found, he can be sued where the covenant has been
broken.
Halsall v Brizell [1957] Ch 169 HC
Key Facts
A deed granted rights to use roads and drains to those

occupying property on a housing estate. It included an obli-
gation to contribute towards the expenses of maintenance
and this was disputed.
172 Covenants
Key Law
It was argued that the burden of a positive covenant could

not run at law or in equity but the judge applied an ancient
rule of law that ‘a man cannot take the benefit under a deed
without subscribing to the obligations thereunder’.
Thamesmead Town v Allotey (2000) 79 P &

CR 557 CA
Key Facts
The defendant was relieved of the payment of maintenance

costs in respect of certain facilities because they related to
facilities that he did not use and he therefore derived no
benefit.
Key Problem
The rule in Halsall v Brizell constitutes an exception to the

rule in Austerberry v Corporation of Oldham (above), which
prevents the burden of covenants running at law.
Key Link
Consider ER Ives Investment Ltd v High [1967] 2 QB 379

and connected issues of estoppel and licences.
11.3.1 Tulk v Moxhay (1848) 2 Ph 774 CA
Key Facts
Mr Tulk owned land in Leicester Square and, when he sold it

to Mr Elms, a covenant was entered into that Mr Elms would
maintain the land as an open square. Mr Moxhay purchased
the square from Mr Elms and, although he knew about the
covenant, tried to build on the land. Mr Tulk sought to enforce
the original covenant against Mr Moxhay, arguing that he had
actual notice of the original covenant and so could not ignore
it. The court held that the covenant was enforceable.
Key Law
In certain circumstances the burden of a covenant will be

enforceable against successors in title of the original
covenantor:
ac the covenant must be restrictive in nature;
bc the covenant must have been entered into to run with
the land;
cc the covenant must be one that touches and concerns
the land;
dc the successor must have purchased with notice of the
covenant. The covenant must either be entered by
notice on the Charges Register (in registered land) or as
a Class D(ii) land charge in the event of the land being
unregistered.
11.3.2.2 London County Council v Allen [1914] 3 KB

642 CA
Key Facts
The owner of land entered into a covenant that he would

not build on a plot at the end of new road. This was not
enforceable against the successor in title of the covenantor
because the London County Council, who were the original
covenantees did not own any land in the area.
Key Law
A restrictive covenant will only accommodate a dominant

tenement if the original covenantee owned some land to
take the benefit at the date when the covenant was granted.
Further, a covenant can only be enforced if the dominant
tenement claiming the covenant enjoyed sufficient physical
proximity with the servient tenement.
11.3.4.5 Crest Nicholson Residential (South) Ltd v

McAllister [2003] 1 All ER 46, [2004]
1 WLR 2409 HC/CA
Key Facts
A covenant ‘not to use the premises for any purpose other

than those of or in connection with a private dwelling house’
174 Covenants
was granted when land was sold off in separate plots.

Thirty years later, a subsequent purchaser wanted to build

new houses on the plot and challenged the meaning of the
covenant. The issue was whether the covenant meant that
only one house could be built on the land or that the plot
was not to be used other than for residential purposes. It
was held that the covenant meant that only a single dwelling
house could be built on the plot.
Key Judgment
Neuberger J
‘. . . as a matter of ordinary language, the indefinite article
“a” tends to carry with it the concept of a singularity as
opposed to plurality’ (judgment in the High Court).
11.3.4.5 Federated Homes Ltd v Mill Lodge Properties

Ltd [1980] 1 WLR 594 CA
Key Facts
A single developer owned a number of plots of land. One

plot, named as the blue land, was sold to the defendants
who entered into a covenant that they would not build more
than 300 houses on it. The claimants later bought another
plot, called the green land, which carried an express
assignment of the benefit of the covenant with it, and they
also bought a further plot, the red land, but that did not
carry the express assignment. The issue before the court
concerned the red plot and whether the benefit of the cove-
nant over the blue land could be enforced by the owners of
the red land.
Key Law
The benefit of the covenant had been annexed to the land

by operation of s 78 LPA 1925. This section was interpreted
in such a way that any covenant relating to land must be
read as if made with the covenantor and his successors in
title and the persons deriving title under it or them, including
the owners and occupiers for the time being of the cove-
nantee’s land, and that therefore such a covenant must be
regarded as annexed under statute to the land.
Key Problem
One of the mysteries surrounding this case is why it took so

long to construe the meaning of s 78 in this way. Do you
consider that the statute intended automatic statutory
annexation of the benefit of every freehold covenant?
11.3.4.3 Rogers v Hosegood [1900] 2 Ch 388 CA
Key Facts
A covenant was granted to covenantees who enjoyed an

interest in the land benefited as mortgagees, that ‘no more
than one house would be built on the land’. It was expressly
stated in the deed that the covenant was to ‘enure for the
benefit of the mortgagees, their heirs, and assigns and
others claiming under them to all or any of their lands
adjoining or near to the premises’.
It was held that this showed an intention that the benefit of
the covenant was annexed to the land of the covenantee.
11.3.6.3 Elliston v Reacher [1908] 2 Ch 374 CA
Key Facts
A developer sold a number of separate plots using identical

conveyances and imposing identical covenants upon each
purchaser. The area had been laid out specifically before
sale into separate plots. The issue before the court was
whether the covenants were enforceable against the original
covenantor.
Key Law
Covenants can be enforced under a building scheme where

the following criteria exist:
ic both vendor and purchaser derive title under a common
vendor;
iic before selling the land, the vendor had laid out his
estate in lots and all lots were to be subject to the same
or similar restrictions;
iiic the restrictions were intended by the common vendor
to be for the benefit of all the lots;
176 Covenants
ivc when each lot was purchased, it was on the under-

standing that the restrictions were to benefit all the lots

within the scheme.
There are several benefits in claiming that a building
scheme has been established:
ic the covenant will run even though the original covenantor
does not retain any land capable of being benefited;
iic all the purchasers of plots in the scheme can enforce
the covenants between themselves, irrespective of the
date on which they or their predecessors in title bought
their plots;
iiic the benefit of the covenant will automatically run to all
the successors in title of the original covenantees
without express annexation or express assignment.
This is less important since the decision in Federated
Homes v Mill Lodge Properties gave statutory annexa-
tion of freehold covenants unless there is a contrary
intention shown in the deed.
Key Comment
Subsequent cases such as Re Dolphin’s Conveyance

[1970] Ch 654 and Baxter v Four Oaks Properties Ltd [1965]
1 Ch 816 relaxed the rules laid down in Elliston v Reacher
so it is no longer necessary that all the land has been sold
by a common vendor and there may still be a building
scheme even where the vendor has not laid out the land in
plots before the first land was sold.
11.3.6.3 Wrotham Park Estate Co Ltd v Parkside

Homes Ltd [1974] 1 WLR 798 HC
Key Facts
A restrictive covenant was agreed, between the servient

owners and the dominant owners of two plots of land, that
the servient owners would not build on a certain plot of land
without first obtaining approval from the dominant owners.
In breach of this covenant, they began building on the land
and continued in spite of objections raised by the owners of
the dominant land.
Key Law
The judge did not award a mandatory injunction ordering

the demolition of the houses in view of the fact that the
houses had now been built and demolition would be, in the
words of Brightman J, ‘an unpardonable waste of much

needed houses’. He awarded the dominant owners a sum

equivalent to 5 per cent of the servient owners’ develop-
ment profits in lieu of an injunction.
11.6.4 Wakeham v Wood (1982) 43 P & CR 40 CA
Key Facts
The defendant had broken a restrictive covenant by building

a small summer home in such a way that the claimant’s
view of the sea was obstructed. Warnings had been given
but had been ignored by the defendant. The Court of
Appeal granted a mandatory injunction ordering demolition
of the building.
Key Law
The award of a mandatory injunction will be rare and will

only be granted in certain circumstances, e.g. where there
has been a ‘flagrant disregard of the plaintiff’s rights’. Here
the actual building was small, unlike the development in
Wrotham Park Estate Ltd (above).
11.6.3 Jaggard v Sawyer [1995] 1 WLR 269 CA
Key Facts
The defendant had built a house on a piece of land adjoining

his house. He lived on a private estate and everyone was
bound by a restrictive covenant that they would not build
further houses on their land. Although the covenant did not
extend to the new house, the other owners sought an order
preventing access to the new house via the private road on
the estate that was owned by everyone on the estate.
Key Law
An injunction was refused, both at first instance and also

in the Court of Appeal, but damages were awarded and
the measure of damages was compensatory, namely
what the claimant had lost, rather than restitutionary, i.e.
what the defendant had gained. So here it was not the
value of the new house but the price the defendant would
have paid in order to obtain consent from the claimant.
12 Mortgages
r
Creation of legal mortgage Creation of equitable mortgage
Registered land: a) Equitable interest in land.
• charge by way of legal mortgage; b) Equitable charge.
Unregistered land: c) Incomplete legal mortgage.
• deed; d) Deposit of documents of title.
• deposit of title deeds; e) Charging order.
• demise of a term of years. f) Unpaid vendor’s or purchaser’s
lien.
V
Now triggers registration of title. V -
MORTGAGES
Priority
Protection for mortgagor
Depends on:
a) Protecting right to
• whether mortgage is legal or
redeem.
equitable;
b) Striking down oppressive
• whether the title is registered
interest rates.
or unregistered.
c) Preventing extortionate
credit agreements.
d) Preventing unfair
collateral advantages.
e) The court may set aside Rights of the mortgagee
any transaction which has a) Possession.
been induced by undue b) Action on covenant to repay.
influence. c) Appointment of a receiver.
d) Power to sell.
e) Foreclosure.
Z 12.1 Definition of mortgages

1 A mortgage of land is the conveyance or transfer of land made to
secure the future repayment of a loan or the discharge of some other
obligation.
The creation of mortgages 179
2 The land is transferred to the lender but subject to the provision for
redemption, which provides that once the loan has been repaid the
transfer becomes void or the land is transferred back to the borrower.

3 The borrower (mortgagor) grants the mortgage to the lender
(mortgagee).
4 A mortgage takes effect both in property law and in the law of contract.
Z 12.2 The development of mortgages at

common law and in equity
12.2.1 The common law

1 Before 1926, when the mortgagee took out a mortgage he/she actually
conveyed the land to the lender, stipulating that, on a certain date, the
mortgagee would reconvey the property back to the mortgagor.
2 The repayment had to be on the date agreed and there was no scope for
varying the date.
3 Failure to repay on the agreed date meant the mortgagor lost the prop-
erty to the mortgagee even if the value of the property was far more than
the outstanding amount on the loan.
12.2.2 Equity
1 Equity modified the effects of the common law in the seventeenth
century and allowed the repayment to be made after the redemption
date, called the ‘equitable right to redeem’.
2 Under the rules of equity, the mortgagor remained the owner of the
property even during the currency of the loan, but subject to the loan.
3 As a result of the rules of equity, if the mortgagee went into possession
of the property then he/she had to account to the mortgagor for any
profit made if the property was subsequently sold.
Z 12.3 The creation of mortgages
12.3.1 Legal mortgages and charges

1 Legal mortgages can only be created where the borrower has a legal
interest (fee simple or term of years) in the property.
180 Mortgages
2 In registered land, a legal mortgage is created by a registered charge

which can take two different forms.
a) The most usual form is a charge by way of legal mortgage:

O this is effective at law once it has been registered by the chargee
(lender) in the Charges Register;
O if it is not registered then it will only be effective in equity and
will take effect as a minor interest also requiring protection by
notice or caution on the Charges Register.
b) It was possible to create a mortgage by ‘charge by way of demise of a
term of years’, which meant that the mortgagee got a leasehold
interest of 3,000 years in the property. This means of creating a
mortgage was abolished for mortgages of registered land under the
LRA 2002.
3 In unregistered land, legal mortgages can be created either by charge or
by demise.
4 A first legal mortgage of unregistered freehold or leasehold land
executed after 1 April 1998 will trigger the need for first registration at
HM Registry.
O If there is no application for first registration of the mortgagor’s estate
within two months, the mortgage will lapse as a disposition of a legal
charge.
O The mortgagor will still have a legal estate but the mortgage will
merely be a contract to create a legal charge and will take effect in
equity only.
5 Historically, mortgages in unregistered land could be made by deposit of
title deeds, as this was an effective safeguard against attempts to deal in
the estate without notifying the first mortgagee.
O These mortgages, if made after 1 April 1998, will trigger first registra-
tion of title.
O Mortgages made before this date should have been registered at the
Land Charges Registry as a Class C(i) land charge if the mortgagee
wished the mortgage to have priority over other charges.
O It was the only legal interest in land (called a puisne mortgage) that
could be registered at the Land Charges Registry.
O Today, the creation of a mortgage will always act as a trigger for
compulsory registration of the title.
Protection for the borrower/mortgagor 181
12.3.2 The creation of equitable mortgages

1 There are many different forms of equitable mortgage. These are some
examples:
O A mortgage of a mortgagee’s equitable interest in land – this must be
equitable because the mortgagee only has an equitable estate, e.g. a
beneficial interest under a trust of land.
O An informal or incomplete mortgage of a legal estate in land – e.g. a
defect in the creation of a legal mortgage or failure to register the
charge at the Land Registry.
O An equitable charge – land charged with an obligation, such as the
repayment of a debt but, unlike a mortgage, no property passes to the
chargee, only the right to sue for the debt.
O Mortgage by deposit of documents of title, coupled with a written
and signed contract of loan. Before the LP(MP) Act 1989, a mort-
gage could be created by depositing title deeds without the need for
written documents (Russel v Russel (1783)). Today, there must be a
written contract in order for it to take effect as an equitable
mortgage.
Z 12.4 Protection for the borrower/mortgagor

There are four main ways that equity has attempted to protect the mortgagor:
O protecting the equitable right to redeem;
O striking down oppressive interest rates;
O preventing extortionate credit bargains;
O preventing unfair collateral advantages.
12.4.1 Protecting the equitable right

to redeem
1 Under common law the mortgagor has the right to redeem the mortgage
only on the contractual date for redemption.
2 It was only after the intervention of equity that the mortgagor gained
the right to redeem after the date for redemption had passed and when
the legal right to redeem was lost.
3 Traditionally, the courts have struck down any attempt to ‘fetter the
equity of redemption’ (Biggs v Hoddinott (1898); Bradley v Carritt
182 Mortgages
[1903]; Jones v Morgan [2002]; Kreglinger v New Patagonia Meat

Co (1914)). Compare cases where the courts have considered a term to
be acceptable even though the date of redemption has been delayed

because the terms are not harsh and unconscionable (Knightsbridge
Estates Trust Ltd v Byrne [1939]).
4 Attempts to postpone the contractual date for redemption may be struck
down where it results in reduction of value of the asset, e.g. a leasehold
property (Fairclough v Swan Brewery Co Ltd (1912)).
12.4.2 Oppressive interest rates

1 Mortgagees can reserve to themselves the right to vary the rate of
interest at any time.
2 Control by the courts of oppressive interest rates depends largely on the
court’s inherent jurisdiction to declare any mortgage term ‘void’ if it is
‘oppressive’ or ‘unconscionable’. A rate of 57 per cent was regarded as
unconscionable in Cityland and Property (Holdings) Ltd v Dabrah
(1968).
3 When the court reviews interest rates, it will only vary the rate if it sees
the mortgagor was in a weaker bargaining position than the mortgagee
at the time the mortgage was agreed (Cityland and Property (Holdings)
Ltd v Dabrah (1968)).
4 A mortgagor of ‘intelligence’ and a ‘man of business’ could not challenge
an interest rate of 75 per cent (Carringtons Ltd v Smith (1906)).
5 There is no objection in principle to the index-linking of mortgage
commitments (Multiservice Bookbinding Ltd v Marden (1979)).
6 It was held in Nash v Paragon Finance (2002) that it is implied into a
mortgage that a mortgagee is under a contractual obligation not to set
interest rates dishonestly for an improper purpose, capriciously or
arbitrarily.
12.4.3 Extortionate credit agreements

1 Protection for mortgagors against unconscionable credit agreements is
provided by the Consumer Credit Act 1974 (as amended by the
Consumer Credit Act 2006).
2 This Act gives the courts the power to reopen ‘extortionate’ credit bargains.
3 Generally, a mortgage of land is not a ‘consumer credit agreement’
because some agreements are exempt under the Act and such
Protection for the borrower/mortgagor 183
agreements include mortgages granted by building societies, banks and

local authorities. Second mortgages are covered by the Act.
4 Any mortgage can be set aside where it comes within the definition of an
‘extortionate credit bargain’.
5 Once the court declares the credit agreement to be extortionate, it is
reopened and, unless the mortgagee proves that it was not extortionate,
the court will set aside any part or the whole of the agreement.
6 Under the Consumer Credit Act 2006, the ‘extortionate credit agree-
ment’ has been replaced by a new test that is easier for debtors to satisfy
and allows the courts to intervene in more credit agreements.
7 Under the 2006 Act the court may make an order in connection with a
credit agreement if it finds the relationship between the creditor and
the debtor to be unfair to the debtor because of any terms in the
agreement.
8 The court has a wide jurisdiction under the 2006 Act, which includes
making the creditor repay money paid under the agreement or fulfil
conditions specified by the court, or altering terms of the agreement.
12.4.4 Unfair collateral advantages

1 Equity has always prevented any attempt to put a ‘clog or fetter’ on the
effective exercise of the mortgagor’s equity of redemption.
2 The modern view is that these terms will only be unlawful if they are:
O unfair and unconscionable; or
O in the nature of a penalty clogging the equity of redemption; or
O inconsistent with or repugnant to the contractual and equitable right
to redeem.
3 A collateral advantage that is not part of the mortgage will be outside
the principle that it ‘clogs the equity of redemption’. If the collateral
advantage is a wholly independent transaction, it is enforceable even
beyond the redemption of the mortgage, so long as it is not shown to be
unconscionable (Kreglinger v New Patagonia Meat & Cold Storage Co
Ltd (1914)).
4 If the term can be shown to be a ‘clog’ or ‘fetter’ on the mortgagor’s
equity of redemption, it can be struck down even where it has been as
part of a separate agreement. A provision that the mortgagee ‘should
have a share or interest in the mortgaged property’ constituted an imper-
missible clog on the mortgagor ‘s equity of redemption and could not be
enforced (Jones v Morgan (2002)).
184 Mortgages
12.4.5 The right to grant leases

1 The mortgagor in possession has a statutory right to grant leases of land

that will be binding on the mortgagee.
2 Such leases will not normally exceed 50 years.
3 It is standard practice for the right to grant leases to be excluded. It is
only in exceptional cases that a lease entered into after the creation of
the mortgage, where the statutory power has been excluded, will be
binding on the mortgagee (Barclays Bank v Zaroovabli (1997)).
Z 12.5 Undue influence in a

mortgage transaction
1 The court has the power to set aside a mortgage that has been induced
by undue influence (Barclay’s Bank v O’Brien (1994)).
2 Undue influence can be either:
O actual undue influence; or
O presumed undue influence.
12.5.1 Actual undue influence

1 The claimant must prove that undue influence was exerted over him to
enter into the particular transaction, e.g. evidence of physical pressure
exerted by a husband over his wife in order to gain her signature to a
mortgage.
2 In these cases there is no need to show that the transaction was to the
victim’s manifest disadvantage.
12.5.2 Presumed undue influence

1 In these cases the claimant only has to show that there was a relation-
ship of trust and confidence between the wrongdoer and the claimant.
2 The relationship was of such a nature that it is fair to presume that the
wrongdoer abused that relationship to persuade the claimant to enter
into the transaction.
3 The burden of proof shifts to the wrongdoer to show that there was no
undue influence, e.g. by showing that the claimant received independent
advice.
Undue influence in a mortgage transaction 185
4 Barclays Bank v O’Brien held that presumed undue influence could arise
in one of two forms:
a) automatic presumption of undue influence as a matter of law in

certain kinds of relationship, e.g. solicitor and client, doctor and
patient, parent and child;
b) presumption based on the de facto existence of a relationship under
which the complainant generally placed ‘trust and confidence in the
wrongdoer’ (Barclays Bank plc v O’Brien (1994)):
O the transaction can be set aside on the mere proof that the
complainant placed trust and confidence in the wrongdoer;
O it is not necessary to show that there is actual undue influence or
that the wrongdoer abused it in relation to the transaction;
O examples of relationships that give rise to the presumption in b)
would be son and elderly parents, cohabiting partners (either
homosexual or heterosexual).
5 Since Royal Bank of Scotland v Etridge (2002), it is no longer neces-
sary to prove manifest disadvantage in order to establish undue influ-
ence. Royal Bank of Scotland v Etridge (2002) also removed the strict
categories for when presumed undue influence would arise, as laid down
in O’Brien.
6 The mortgagee will be put on inquiry in every case where the relation-
ship between the mortgagor and the mortgagee is non-commercial.
7 The mortgagor may claim to have the transaction set aside if there is
evidence that the mortgagee had actual or constructive notice of the
undue influence:
O constructive notice will be proved if, on its face, the transaction was
not to the financial advantage of the borrower; or
O there is a substantial risk that the primary debtor (e.g. the husband)
may have committed a legal wrong that would then entitle the surety
to set aside the transaction.
8 The transaction will not be set aside if the mortgagee can prove either
that the claimant attended a private interview explaining the risks of the
situation or was given some independent legal advice.
O The mortgagee can rely on confirmation from a solicitor acting for
the surety that advice was given.
O The mortgagee will not be liable for negligent advice given by the
solicitor unless he is aware that the solicitor has given improper
advice or he knows that the solicitor is not fully aware of all the facts.
186 Mortgages
Z 12.6 Rights of the mortgagee

12.6.1 The right to take possession

1 The mortgagee has the right to take immediate possession of the mort-
gaged property. In Four-Maids Ltd v Dudley Marshall (Properties) Ltd
(1957) Harman J said: ‘. . .The mortgagee may go into possession before
the ink is dry on the mortgage unless there is something in the contract,
express or by implication, whereby he has contracted himself out of that
right’. The legal mortgagee’s right to possession arises as soon as the mort-
gage is made (and even in advance of the date fixed for redemption).
2 Institutional lenders such as building societies do not want possession
for themselves but want possession in order to sell the property.
3 A mortgagee who goes into possession will be subject to the stringent
control of equity.
4 There is no requirement for a court order if taking possession of the prop-
erty can be carried out peaceably (Ropaigealach v Barclays Bank plc (1999)).
5 Most mortgage agreements only allow the right to take possession where
there has been default by the mortgagor.
6 The payment of the sum owed must be ordered to be payable by instal-
ments and not ordered to be repaid in full when the mortgagee demands.
7 The court has an inherent power to postpone possession proceedings to
give the mortgagor a limited opportunity to find the means to pay the
debt (28 days).
8 There are also statutory powers to stay proceedings under s 36 Adminis-
tration of Justice Act 1970 (as amended by s 8 Administration of Justice
Act 1973), which protects homeowners from repossession for such time
as the court thinks is reasonable.
9 The court will only stay proceedings if there is a realistic chance of the
mortgagor repaying the sum outstanding, although this may not be the
entire sum (Cheltenham & Gloucester Building Society v Norgan
(1996)). The court must look at the mortgagor’s position realistically
(First National Bank v Syed (1991)).
10 A court must look at the mortgagor’s financial position realistically. A
court should not sanction the postponement of a possession order unless
it is based upon a realistic assessment of the situation. It should neither
make an order that would clear the arrears and meet the ongoing payments
if it is one that the mortgagor cannot afford, nor should it make an order
that the mortgagor could afford but would not enable the arrears to be
cleared within a reasonable time (First National Bank v Syed (1991)).
Rights of the mortgagee 187
11 It is not necessary to take possession of property first in order to exercise

the power of sale (Horsham Properties v Clarke and Beech (2009)).
12.6.2 Other rights of the mortgagee

1 Action on the mortgagor’s covenant to repay – this arises under contract.
The mortgagee can seek judgment against the mortgagor and, if he/she
fails to repay, it can seek an order for bankruptcy (Alliance & Leicester
v Slayford (2001)). Interest will be statute-barred after six years (s 20
LA 1980).
2 Appointment of a receiver:
O The receiver will handle the income of the mortgaged property, but
is under a less strict duty than a mortgagor in possession.
O The power to appoint a receiver will be in the mortgage deed.
O The date for redemption must have passed.
O Must be in writing.
O Section 109 LPA governs the making of payments from the income
by the receiver.
O Usually only appropriate in commercial mortgages.
The receiver is deemed to be an agent of the mortgagor and any negli-
gence in the administration of the property does not rest with the mort-
gagee (Medforth v Blake (2000)).
3 Exercise of the power to sell:
O Sections 101 to 104 expressly confer the power of sale in a mortgage
deed.
O The legal date for redemption must have passed or some instalment
of the mortgage money must have become due.
O Three conditions to be satisfied:
a) notice served by the mortgagees;
b) interest due under the mortgage is two months in arrears;
c) the mortgagors have breached a term under the mortgage deed.
O Under s 105 the proceeds of sale must be paid in order of priority of
the mortgages. Any outstanding amount can be claimed personally.
The mortgagee is under a duty to obtain a proper price.
O A receiver may be appointed as they will be responsible for the sale.
O In Cuckmere Brick Co Ltd v Mutual Finance Ltd (1971) property
was sold and the mortgagor sued the mortgagee alleging that the sale
188 Mortgages
price achieved was too low. The mortgagor argued that the fact that
there was planning permission attached to the land was not properly
advertised. The Court of Appeal held that the mortgagee’s duty to

the mortgagor had been broken.
Although usually it is the mortgagee who will apply to the court for sale
of the property, it is also possible for the mortgagor to apply under s 91
LPA 1925 (Mortgage Service Funding v Palk (1993)). This will prevent
the debt of the mortgagor increasing further. This power seems to be
restricted to situations where s 36 Administration of Justice Act 1970
applies (Cheltenham & Gloucester Building Society v Krausz [1997]).
4 Foreclosure is the most draconian remedy open to the mortgagee.
O It leaves the entire value of the mortgaged property in the hands of
the mortgagee.
O It can only be ordered after an application to the court.
O These days it is extremely rare.
O It allows the mortgagee to retain any increase in value of the property.
Z 12.7 Priority of mortgages

1 If there is more than one mortgage in the property and the borrower
defaults, prompting one of the lenders to sell the property, the priority of
the other lenders is governed by two factors:
O Are the mortgages legal or equitable?
O Is the title to the property registered or unregistered?
12.7.1 Unregistered land

1 A legal mortgage with title deeds will bind all subsequent mortgages.
2 A legal mortgage will take priority over an earlier equitable mortgage if
the mortgagee had no notice of it.
3 Where both mortgages are equitable, the first in time will generally
prevail.
4 If the first equitable mortgage is not protected by title deeds, it must be
registered and, if it is not properly registered, it will lose priority over a
later mortgage.
5 Mortgages of an equitable estate are governed by the rule in Dearle v
Hall (1823), i.e. the order in which notice of the mortgage is received by
the trustees of the land.
Priority of mortgages 189
6 Mortgages of unregistered land will become increasingly rare over time

since a new mortgage of unregistered land acts as a trigger for registra-
tion of the title.
12.7.2 Registered land

1 There is only one way of mortgaging a legal estate and that is by way of
registered charge.
2 Registered charges will rank according to the order in which they are
entered on the register and not according to the time when they were
created.
3 An equitable mortgage must be registered as a minor interest.
4 Failure to protect the rights results in them losing priority over subse-
quent rights, even where there is actual or constructive notice of them.
5 Where there are two equitable mortgages, priority is decided not by
entry on the register but by the date of creation.
6 The rule in Dearle v Hall (1823) will also apply where there is a mortgage
of an equitable estate with registered title.
12.7.3 Example – priority between mortgages

in registered land
Greenacre
X holds legal charge dated Jan 5 but registered Jan 26.
Y holds legal charge dated Jan 15 but registered Jan 20.
Answer Priority: 1 - Y 2 -Х
Whiteacre
X holds an equitable charge dated Jan 15 which is unregistered.
Y holds a legal charge dated Jan 25 and it is registered Jan 25.
Z holds an equitable charge dated Jan 10 and it is registered Jan 10.
A holds a legal charge dated Jan 30 and it is registered Jan 30.
Answer Priority: 1 - Z, 2 - Y, 3 - A, 4 - X
190 Mortgages
Key Cases Checklist

RIGHTS OF THE MORTGAGOR

Biggs V Hoddinott (1898)
Collateral advantages are enforceable whilst the mortgage continues
Bradley V Carritt (1903)
A term of a mortgage cannot be enforced after redemption of the
mortgage
Kreglinger v New Patagonia Meat & Cold Storage Ltd (1914)
A mortgage term will be upheld If It Is not a clog or fetter on redemption
Fairclough v Swan Brewery Co (1912)
A term preventing redemption until weeks before a long lease ends Is a
fetter on redemption
Knightsbridge Estates Trust Ltd v Byrne (1939)
A term postponing redemption between two businessmen will not be a
fetter on redemption
Jones V Morgan (2002)
A provision that the mortgagee could have a share or Interest In the
property constituted an Impermissible clog on the mortgagor’s equity of
redemption
UNFAIR TERMS
Multiservice Bookbinding Ltd v Marden (1979)
A mortgage will not be set aside if there is no evidence of unequal
bargaining power between two parties; independent advice is given and
one party did not take advantage of the other
Cityland & Property (Holding) Ltd v Dabrah (1968)
If the original rate of interest is unfair a court has the power to substitute
a new rate
Paragon Finance pic v Nash (2002)
The right to vary interest can only be exercised for proper motives
UNDUE INFLUENCE
Barclays Bank v O'Brien (1994)
A mortgagee will be bound by the mortgagor's rights where he/she
enters the mortgage under undue influence
Royal Bank o f Scotland Ltd v Etridge (No. 2) (1998)
There can be undue influence even where there had been independent
advice but not if the proper steps are observed
Alliance & Leicester pic v Slayford (2001)
RIGHTS OF THE MORTGAGEE

THE RIGHT OF POSSESSION
Palk V Mortgage Services Funding pic (1993)
Even if the mortgagee forces a sale the mortgagor remains liable for
outstanding amounts
Cheltenham and Gloucester Building Society v Norgan (1996)
The timing of repayments will depend on the length remaining of the
mortgage
THE RIGHT TO SELL
Cuckmere Brick Co Ltd v Mutual Finance Ltd (1971)
The mortgagee was under a duty to take reasonable care to obtain the
true market price for the property
APPOINTMENT OF A RECEIVER
Medforth V Blake (1999)
The receiver owes a duty of due diligence to the mortgagor over the
management of premises
Redemption must be free from any clogs or fetters
12.4.1.3 Biggs v Hoddinott [1898] 2 Ch 307 CA
Key Facts
The mortgagors were publicans and a term of their mort-

gage over the public house that they ran was that the mort-
gagees would supply all the beer to them. The mortgagors
argued that this term was void in equity because it was a
clog or fetter on the mortgage.
Key Law
The covenant did not affect the equity of redemption. The

mortgage could be redeemed independently from the
covenant. This case suggests that collateral advantages
can be enforceable while the mortgage continues.
192 Mortgages
12.4.1.3 Bradley v Carritt [1903] AC 253

HC
Key Facts
A mortgage was drawn up over shares in a tea company.

One of the terms was that the mortgagor should use his
best endeavours to ensure that the mortgagee, who was a
tea broker, should act as agent for the company’s tea. The
mortgagee tried to enforce this term after the mortgage had
ended.
Key Law
It was held that such a term could not be enforced after

redemption.
Key Comment
This case concerns a key issue in mortgages. To what

extent are the parties free to include terms that they wish?
In Bradley v Carritt the court was split 3:2, with the minority
in favour of allowing business the freedom to negotiate
bargains without intervention from the courts. It may have
been different here if the term was a purely personal one
and did not relate to the property at all.
12.4.1.3 Kreglinger v New Patagonia Meat & Cold

Storage Co Ltd [1914] AC 25 HL
Key Facts
A firm of meatpackers borrowed £10,000 from a firm of

woolbrokers. The assets of the meatpackers were put up
for security and they agreed that they would give the firm of
woolbrokers the right of first refusal on all its sheepskins
and to pay commission on any sold to a third party for the
five years of the loan. This would be the case even if the
loan had been repaid since the borrowers had been given
the right to repay at any time. One further term included
was that the lenders agreed not to call in the loan at any
time during five years.
The borrowers challenged the term giving the right of first
refusal to the woolbrokers.
Key Law
The House of Lords upheld the term even though it was

included in the mortgage terms. It concluded that it was not
a clog or fetter on redemption.
12.4.1.3 Jones v Morgan [2002] 1 EGLR 125 CA
Key Facts
Morgan procured a loan from Jones to be secured on land

that Morgan was interested in and on which he wished to
develop housing. The loan was later varied to include a
term that Morgan would transfer to Jones without payment
of any price a one-half interest in the land. No order for
specific performance was made.
Key Law
It was held that although the subsequent variation was

made three years after the loan, it was held to be part
of the original mortgage transaction. A provision that
the mortgagor ‘should have a share or interest in the mort-
gaged property’ constituted an impermissible clog on
the mortgagor’s equity of redemption and could not be
enforced.
12.4.1.4 Fairclough v Swan Brewery Co Ltd [1912]

AC 565 PC
Key Facts
A very long lease of a public house was mortgaged on

terms that it could not be redeemed until six weeks before
the lease expired, which was in 172 years’ time!
Key Law
The Privy Council held that this term was a fetter on

redemption because it made the right to redeem the
mortgage virtually worthless as the final six weeks would
have practically no value.
194 Mortgages
12.4.1.3 Knightsbridge Estates Trust Ltd v Byrne

[1939] Ch 441 CA
Key Facts
A company had mortgaged its freehold property on terms

that the mortgage would be repaid over a period of 40
years. The mortgagors wanted to redeem the mortgage
early but the mortgagees objected.
Key Law
The term postponing redemption was upheld and the mort-

gagors had no right to redeem early. The term was enforce-
able because it had been agreed between two businessmen
as a commercial arrangement. If the property had been
domestic property then it was unlikely that it would have
been upheld.
12.4.2.5 Multiservice Bookbinding Ltd v Marden [1979]

Ch 84 HC
Key Facts
A mortgage had tied the interest and capital to a foreign

currency. As a result of devaluation, the repayments
increased substantially. The mortgagor also agreed to pay
interest at 2 per cent above the minimum lending rate. Over
the four-year period the repayments of capital and interest
amounted to nearly four times the amount borrowed. The
mortgagor sought to have the loan set aside.
Key Law
The court refused to set this aside because there was no

evidence that the parties were in unequal bargaining
positions, nor had one side tried to take advantage of
the other, and the mortgagor had received independent
advice.
12.4.2.2 Cityland & Property (Holding) Ltd v Dabrah

[1968] Ch 166 HC
Key Facts
A mortgage included a term that, on default, the whole sum

would become due. In this mortgage this meant a sum of
£4,553, although £2,900 had been lent initially. The mort-
gagor had difficulties within a year and the full sum became
payable. This represented 157 per cent of the loan and an
annual interest rate of 38 per cent.
Key Law
The court did not uphold the term because it was unfair, but
instead substituted an interest rate of 7 per cent.
12.4.2.6 Paragon Finance plc v Nash [2002]

1 WLR 685 CA
Key Facts
A challenge was made to the power inserted conventionally

into a mortgage that there would be discretion to vary interest
rates. Such a power would usually be reserved to take
account of any variation in the Bank of England interest rates.
Key Law
In this case the rate had been raised for a borrower because
of losses incurred by the lender and this was held not to be
unreasonable. The right to vary interest rates can be
reserved but it should not be exercised ‘dishonestly, for an
improper purpose, capriciously or arbitrarily’. Examples
were given where the rate of interest might be exercised for
totally improper reasons, e.g. the bank manager did not like
the colour of the borrower’s hair.
The courts have not been prepared to set aside a mortgage
simply because there has been inequality of bargaining
power. In Lloyds Bank v Bundy [1975] QB 326, Lord
Denning had unsuccessfully argued this principle. The
House of Lords said in the later case of National Westminster
Bank v Morgan [1985] AC 686 that as a court of conscience,
it must decide each case on its particular facts before
deciding whether there has been unconscionability.
196 Mortgages
12.5.1 Barclays Bank v O’Brien [1994] 1 AC 180

CA
Key Facts
Mrs O’Brien signed a deed believing that she had secured a

loan of £60,000 for her husband’s failing business. In fact,
she had given the bank unlimited guarantee over the family
home, which amounted to over £135,000 – double the
amount she had agreed to. She had never been given inde-
pendent advice from a solicitor on the effect of the document
that she was signing, she had signed the document in front
of a bank clerk and she had not properly read the document
before signing. When the bank tried to gain possession of
the house, she argued that she had signed the documents
as a result of her husband’s undue influence.
The rights of a claimant, usually a wife, will prevail over the
lender where the wife enters into a mortgage as a result of
undue influence.
Key Law
Undue influence can be either:

a) actual undue influence – where the other party has
actually exerted undue influence causing the claimant
to enter into the transaction;
b) presumed undue influence – where the claimant does
not have to show that there is actual undue influence
but there is a relationship of trust and confidence
between the claimant and the wrongdoer, and the
wrongdoer abused that relationship by procuring the
claimant to enter into the transaction. Sometimes this
confidential relationship is presumed, e.g. between
solicitor and client. Sometimes it is for the claimant to
prove that such a relationship existed.
12.5.2.5 Royal Bank of Scotland plc v Etridge (No. 2)

[1998] 4 All ER 705 HL
Key Facts
A house had been purchased in the name of Mrs Etridge

but Mr Etridge had provided the money. She later took out
a loan of £100,000 to provide an overdraft facility for her
husband’s company. The first house was sold and a new
house was purchased, carrying the loan of £100,000. When
the husband got into financial difficulties and the bank

claimed the right to sell the house, the wife argued that the
loan should be set aside for undue influence.
The wife could not claim that she had been subject to
undue influence. She had not been bullied by her husband
and made to agree to take out the loan. However, the court
held that there could be undue influence even where there
had been independent advice.
Key Judgment
Lord Nicholls
‘In the normal course, advice from a solicitor or other
outside adviser can be expected to bring home to a
complainant a proper understanding of what he or she is
about to do. But a person may understand fully the implica-
tions of a proposed transaction . . . and yet be acting under
the undue influence of another.’
The House of Lords continued to review the situations
where the mortgagee may be affixed with constructive
notice of the undue influence. It concluded that the mere
fact that a mortgagee is put on inquiry that a mortgagor
might be involved in a transaction subject to undue influ-
ence does not inevitably mean that the mortgage will be set
aside. The mortgagee must take reasonable steps to
ensure that the mortgagor was not acting under the undue
influence of a third party.
Lord Nicholls
‘For the future, a bank satisfies these requirements if it
insists that the wife attend a private meeting with a repre-
sentative of the bank at which she is told of the extent of
her liability as surety, warned of the risk she is running and
urged to take independent legal advice. In exceptional
cases the bank, to be safe, has to insist that the wife is
separately advised.’
12.6.2.1 Alliance & Leicester plc v Slayford [2001] 1 All

ER (Comm) 1 CA
The building society appealed against the dismissal of its

application for leave to pursue a money judgment against
the mortgagor. The mortgagor’s wife successfully argued
that she had signed the consent form without adequate
advice and the possession proceedings against her were
dismissed. The building society applied for leave to amend
the pleadings to allow it to pursue a money judgment
against the husband.
198 Mortgages
The Court of Appeal upheld the building society’s right to

amend the pleadings.
Key Facts
A mortgagee was not prevented from pursuing a different

remedy following its failure to realise its security through
possession proceedings, even where such proceedings
might result in an application by the trustee in bankruptcy
for sale of the property.
12.6.1.1 Four-Maids Ltd v Dudley Marshall [1957]

Ch 317 HC
Key Judgment
Harman J
‘The mortgagee may go into possession before the ink
is dry on the mortgage unless there is something in
the contract, express or by implication, whereby he has
contracted himself out of that right.’
Key Comment
The legal mortgagee’s right to possession arises as soon

as the mortgage is made (and even in advance of the date
fixed for redemption).
12.6.2.3 Palk v Mortgage Services Funding plc [1993]

Ch 330 CA
Key Facts
In this case the mortgagee was seeking possession of the

mortgagor’s house. The property had fallen in value due to
a recession and the mortgagees wanted to retain the prop-
erty and sell at a time when the property prices had risen in
value. They wanted to let the house on lease during this
time. The issue was whether they could do this and whether,
during this time, the mortgagor still had to make payments
due under the loan contract.
Key Law
The mortgagor was held to remain liable for the mortgage

repayments; however, he had the power himself to ask the
court to order sale. In this case the court ordered sale, having
been persuaded that to delay sale would have resulted in the
debt growing impossibly large, in which case the mortgagors
would have had little prospect of ever repaying.
Key Comment
If the mortgagee forces a sale and the proceeds of sale do

not meet the amount owing then the mortgagor remains
liable on any outstanding amounts.
12.6.1.9 Cheltenham and Gloucester Building Society

v Norgan [1996] 1 WLR 343 CA
Key Facts
In this case the mortgagor resisted an application for an

order for possession by showing that repayments could be
made over a long period of time but if it was restricted to
between two and four years, as was usual in such cases,
then repayments would have been impossible.
Key Law
Under s 36 Administration of Justice Act 1970, the courts

have the right to adjourn possession proceedings relating
to a dwelling house for such period as the court thinks
reasonable, if it appears that the mortgagor may, within a
reasonable period, be in a position to repay the sums due
under the mortgage or to remedy a default. In this case the
courts exercised their right to delay repayments of mort-
gage arrears by considering the whole period of the mort-
gage as opposed to ordering repayments within a shorter
period of one or two years.
When considering what a reasonable period is, the starting
point should be the whole length remaining of the mort-
gage. Once this has been established, the court should
look at whether or not the mortgagor could repay over the
whole period.
200 Mortgages
The court must look at several key issues:

a) How much of the mortgage term remains?

b) How much can the mortgagor reasonably afford to pay
both now and in the future?
c) Why has the borrower been unable to pay and how long
will this reason last? If the prospect of repayment is not
reasonable then an order for possession will be made
immediately.
12.6.2.3 Cheltenham and Gloucester Building Society

v Krausz [1997] 1 All ER 21 CA
Key Facts
A mortgagor sought an order for sale of a mortgaged prop-

erty when the mortgagee had obtained a warrant for
possession and had yet to execute that warrant. The
proposed sale price would not have produced sufficient
funds to discharge the amount owing. The Court of Appeal
refused to order a sale and instead allowed the warrant for
possession to be enforced.
Key Judgment
Philips LJ
‘Section 36 does not empower the court to suspend
possession in order to permit the mortgagor to sell the
mortgaged premises where the proceeds of sale will not
suffice to discharge the mortgage debt, unless of course
other funds will be available to the mortgagor to make up
the shortfall.’
12.6.1.9 First National Bank v Syed [1991] 2 All ER

250 HC
Key Facts
A court must look at the mortgagor’s financial position

realistically.
A court should not sanction the postponement of a posses-
sion order unless it is based upon a realistic assessment of
the situation. It should neither make an order that would
clear the arrears and meet the ongoing payments if it is one
that the mortgagor cannot afford, nor should it make an
order that the mortgagor could afford but would not within
a reasonable time enable the arrears to be cleared.
12.6.2.3 Cuckmere Brick Co Ltd v Mutual Finance Ltd

[1971] Ch 949 CA
Key Facts
Property was sold at what the mortgagor regarded at

undervalue and the mortgagor sued the mortgagee, alleging
that the sale price achieved was too low. The mortgagor
argued that the fact that there was planning permission
attached to the land was not properly advertised. The
majority of the Court of Appeal held that the mortgagee’s
duty to the mortgagor had been broken.
12.6.2.2 Medforth v Blake [1999] 3 All ER 97 AC
Key Facts
A receiver took over a pig farming business after the farmer

could not repay instalments on the loan to the business.
The farmer argued that the receiver had not managed the
business properly as he had failed to get discounts on pig
feed that were available. Since this was the major expense
of the business, he reduced its profitability.
Key Law
The receiver owes a duty of due diligence to the mortgagor

over management of the premises. It is not just a duty of
good faith but can cover practical issues in the day-to-day
running of the business. A receiver may choose not to
continue to run a business but, if the receiver does choose
to continue running the business previously run by the
mortgagor, duties are owed by the mortgagee in the
management of that business.
13 Leases
Characteristics of a lease: Distinction between a lease and

• exclusive possession; licence
• for a term; • Lease gives a proprietary estate.
• at a rent. • Licence gives a personal right to
Creation of a lease must be in writing occupy.
and by deed unless less than three • Significance lies in:
years. i) Statutory protection;
Leases for more than seven years ii) right to assign;
are registrable legal estates in land. iii) right to enforce covenants;
4 iv) right to buy.
' Λ
Termination of leases: λ
a) notice to quit; Regulation of leases
b) forfeiture; Express covenants.
c) surrender; Implied covenants:
d) disclaimer; • quiet enjoyment;
e) expiry; • derogation from the grant.
f) frustration;
g) merger; Common law implied
h) repudiation; covenants for repair.
i) use of a ‘break clause’. LEASES Statutory obligations:
• to keep in good repair;
• ss 8-10 LTA 1985;
• ss 11-16 LTA 1985;
1 • Defective Premises Act 1972y
Enforcement
a) Before 1995 covenants
enforceable against T even after
assignment. Remedies for breach of covenant:
b) After 1995 convenants no longer Landlord:
automatically enforceable after • forfeiture;
assignment. Cannot be varied by • injunction/specific performance;
parties. No release if excluded • sue for damages.
assignment or authorised Tenant:
guarantee agreement. • damages;
c) After 1995 still liable for breaches • specific performance;
occurring before assignment. • self-help and set-off.
^ *
The characteristics of a lease 203
Z 13.1 The characteristics of a lease

1 Under s 1(1)(b) LPA 1925, the term of years absolute is one of two legal
estates in land and is a proprietary estate.
2 A lease or tenancy has proved difficult to define and there is no adequate
statutory definition.
3 Under Street v Mountford (1985), according to Lord Templeman, a valid
lease has three main identifying features:
O exclusive possession of land;
O a determinate period;
O rent or other consideration, although this has been doubted in recent
decisions.
13.1.1 Exclusive possession

1 This means that the tenant has control over who enters the leased
premises and can exclude everyone, including the landlord.
2 A tenant can still have exclusive possession even if he can be required
to vacate the premises for a period each day (Aslan v Murphy (1990))
if the term is a mere ‘sham’ or pretence.
3 Sole occupancy of land is not the same as exclusive possession (West-
minster City Council v Clarke (1992)). The court must look at the
nature of the possession when deciding if there is a lease. In Clarke there
was no exclusive possession of a room in a council hostel for single men
because residents could be required to change rooms at any time.
4 The retention of a key by the landlord does not necessarily mean
that there is no exclusive possession if it is solely for access to carry out
repairs or for emergencies, but if the retention of keys is a sham or
pretence, exclusive possession can still be present (Aslan v Murphy
(1990)).
5 A lodger does not have exclusive possession (Street v Mountford
[1985]). Lodgings usually suggest that services are provided (e.g. the
collection of rubbish or the cleaning of windows), and where services are
provided there cannot be exclusive possession.
6 There will not be exclusive possession if premises are provided by the
employer for the better performance of a job (Facchini v Bryson [1952]).
But provision of premises by an employer unconnected with work allows
the employee to claim that he/she has exclusive possession (Norris v
Checksfield (1991)).
204 Leases
7 Where purchasers are let into possession before completion of a purchase

of premises, there is no exclusive possession.
8 There may be exclusive possession even where the landlord does not
have a legal estate to support a lease. (In Bruton v London & Quadrant
Housing Trust (2000), the landlord had a mere licence but the landlord
still had the right to create a lease in favour of the claimant.) Such a
lease will only be enforceable between the parties and will not be
enforceable against a third-party purchaser from the landlord (Kay v
London Borough of Lambeth [2006] 2 AC 465).
9 The four unities (possession, interest, time and title) must be present in
order for a joint tenancy of the leasehold estate to arise. The four unities
cannot be present where there is a different start date for the agreements
under which the parties hold their interests (A-G Securities v Vaughan
(1990)).
10 A lease can arise even where the landlord reserves himself the right to
move in or to move others into the premises if such a term is shown
to be a sham or a pretence and was never intended to be acted upon
(Antoniades v Villiers (1990)).
13.1.2 A determinate period

1 The maximum duration of the lease must be fixed from the start of
the term.
2 Property let for uncertain periods, e.g. for the duration of the war (Lace
v Chandler (1944); Prudential Assurance v London Residuary Body
(1992)), will not constitute a lease. This principle was reinforced in
Berrisford v Mexfield Housing Co-operative [2011].
3 A clause allowing the lease to be determined before the expiry of the full
term granted will not cause it to fail as a lease.
4 Leases for lives and leases until marriage are statutorily converted into a
90-year term, determinable on the death or marriage of the original
lessee (s 146 LPA 1925).
5 A perpetually renewable lease is converted automatically into a term of
2,000 years, determinable only by the lessee.
6 A periodic tenancy can exist as a tenancy because it is regarded as
running for the period of the term of tenancy and then it is renewed for
a further term (Hammersmith and Fulham LBC v Monk (1992)).
7 A periodic tenancy can still exist as a tenancy even though there is no
fixed term of maximum duration.
The distinction between a lease and a licence 205
8 An example of a periodic tenancy: X grants Y a weekly tenancy – the law

regards the period of the lease as one week, but renewable with the
agreement of the parties at the end of every week.
13.1.3 The obligation to pay rent

1 Historically, this was an essential feature of a lease and it would be
implied where it was not expressly included.
2 It was held to be one of the hallmarks of a tenancy in Street v Mountford
(1985).
3 Rent need not be adequate and could be in a form other than money,
e.g. in kind.
4 Rent must be certain on the date for payment.
5 This has later been disputed in Ashburn Anstalt v Arnold (1989) and
also in Westminster CC v Clarke (1992). The most recent decision on
the issue (Bruton v London & Quadrant Housing Trust (2000))
upholds the principle that rent is not necessary for the creation of a
tenancy, although in practice rent is usually payable and the payment of
rent is indicative of a tenancy.
6 A rent review clause can be included, which varies the amount to be
paid, but if rent can be varied arbitrarily it suggests that a licence exists
(Dresden Estates v Collinson (1987)).
Z 13.2 The distinction between a lease and

a licence
1 The main differences between a lease and a licence:
O a lease confers a proprietary estate, which gives the tenant an exclu-
sive right of possession;
O a licence does not confer a proprietary estate, but merely gives the
licensee personal permission to occupy. The tenant can assign his
rights to third party but, by contrast, a licensee has no right to assign
his rights.
2 The main similarities between the two are that they both confer a right
to exclusive occupation of land in exchange for consideration.
3 The distinction between the two has become less marked in recent
years.
206 Leases
13.2.1 The significance of the lease/licence

distinction in law
1 A tenant can assign his interest in land and the lease is enforceable
against the original lessor.
2 If the landlord sells or transfers his interest in land, the lease is capable
of binding the transferee. A lease over seven years will be registrable by
the tenant but a lease under seven years will be overriding.
3 A licensee cannot claim statutory protection under the landlord and
tenant legislation, e.g. the Rent Act 1977, The Landlord and Tenant
Act 1954 (business tenants only), although they have some protection
under the Housing Act 1985.
4 Residential tenants under long leases may have the right to purchase the
freehold.
5 Tenants have the right to enforce implied covenants to repair in the
lease. This right is unavailable to licensees (Landlord and Tenant Act
1985) (Bruton v London & Quadrant Housing Trust (2000)).
6 Section. 5 the Protection from Eviction Act 1977, which requires four
weeks’ notice to be given to anyone in residential premises, protects
licensees as well as lessees.
13.2.2 The parties’ intentions

1 The tenancy is an agreement between the two parties and is subject to
the usual requirements of a valid contract.
2 The courts look at the true intentions of the parties.
3 The court ignores terms used by the parties such as a ‘licence’ or a
‘tenancy’ (Street v Mountford (1985)). This was a key issue in Somma
v Hazelhurst (1978) where an agreement with the hallmarks of a lease
was upheld as a licence because the parties called it a licence in their
agreement. This approach was criticized (in Street v Mountford (1985))
by Lord Templeman. In his view, it was for the courts to determine
objectively whether an agreement was a lease or a licence. In Bruton v
London & Quadrant Housing Trust (2000), Lord Hoffman said ‘. . . the
fact the parties use language more appropriate to a different kind of
agreement, such as a licence, is irrelevant if upon its true construction it
has the identifying characteristics of a lease’.
4 The courts distinguish between those agreements that are mere ‘shams’
and those that are genuine transactions.
The distinction between a lease and a licence 207
Z 13.3 The creation of a lease

13.3.1 Formalities in the creation

of a lease
1 Both parties must be legally competent, e.g. a minor cannot hold a legal
estate in land.
2 If a minor takes a lease, it will take effect as an equitable estate in
land.
3 The subject matter of the lease must be certain.
4 The formalities for the transfer of a legal estate in land must be complied
with. The conveyance must be created by deed (s 52(1) LPA 1925) and,
as defined in s 1 LP(MP)A 1989, must be signed, witnessed and declare
itself to be a deed.
5 A lease for less than three years does not require writing if it is ‘at
the best rent which can be reasonably obtained without taking a fine’
and possession is immediate (a fine means a premium or lump sum of
money).
6 Failure to comply with the necessary formalities results in the lease
taking effect in equity only.
7 A periodic tenancy can be created orally on the basis that the period is
less than three years.
8 An assignment of a term of years (even if the estate was created orally)
can only be done in writing.
13.3.2 Registration of the leasehold estate

1 Where a leasehold estate is for a period in excess of seven years (LRA
2002) then the interest must be registered at the Land Registry, irrespec-
tive of whether the freehold title is registered or unregistered, before it
can gain legal status.
2 If the term is not registered within two months of the grant it will lose its
legal status and will take effect in equity only.
3 Normally the title will be registered with absolute leasehold title.
4 If this cannot be given then a good leasehold title will be registered,
which means that it will be subject to any ‘estate, right or interest
affecting or in derogation of the title of the lessor to grant the lease’
(s 10 LRA 1925).
208 Leases
5 A lease for less than seven years cannot be registered, but a lease granted
for more than three years can be protected by the entry of a notice and
all leases of less than seven years can take effect as an overriding interest.
Z 13.4 Termination of leases and licences
Notice to quit Forfeiture Surrender
Disclaimer Expiry
Ways in which a lease can come to an end
Frustration
Merger
Repudiation
Use of a ‘break clause’
13.4.1 Ways of ending a lease

1 Notice to quit – either party can serve on the other a notice to quit,
indicating that they no longer wish the tenancy to continue.
O The period of notice in a periodic tenancy is the equivalent period of
each periodic term.
O It is subject to the requirement that it must be given at least four
weeks before the date on which it is to take effect.
2 Forfeiture – the lease may be forfeited if there is a breach of covenant.
This is strictly regulated and is not available in cases of non-payment of
rent until the landlord has formally demanded the rent.
O In other cases, the landlord must serve a section 146 LPA 1925
notice on the tenant.
O The s 146 notice must be in writing and must specify the breach and
request the tenant to remedy this, as well as the tenant paying a sum
in money to the landlord.
Termination of leases and licences 209
O The court has broad discretion to give relief against forfeiture for
both non-payment of rent and other breaches.
O Relief will be granted where the arrears and costs are paid before
trial.
O The court will also grant relief where the breach is not too serious, or
there is a shortfall between the value of the property to be forfeited
and the extent of the damage of the breach.
O Once forfeiture has been granted, the tenant becomes a trespasser.
O A sub-tenant’s lease will also be forfeited unless he is granted relief
by the court (s 146(4)) and the court orders that the lease be vested
in the sub-tenant.
O A landlord can only re-enter residential premises if he has an order
from the court, otherwise it is a criminal offence.
O The landlord must not have waived the right to forfeit by treating
the tenancy as still continuing (e.g. accepting rent after the breach
has taken place).
3 Surrender – a lease can be determined by the surrender of the interest
of the tenant to his immediate landlord. This must be contained in
a deed.
4 Disclaimer – this occurs in one of two ways:
O by the tenant clearly disclaiming his lease; or
O where the liquidator of an insolvent company disclaims a lease
owned by the company if it is seen to be unsaleable.
5 Expiry – a lease or tenancy ends automatically when the term expires.
6 Merger – if the tenant acquires the landlord’s reversion while holding
the tenancy, then the two interests become merged.
7 Frustration – if a supervening event has brought about a fundamental
change of circumstances, the tenancy may be said to be frustrated
(National Carriers Ltd v Panalpina (Northern) Ltd (1981) – closure of
the only access road for 20 months of a 10-year lease was not
frustration).
8 Repudiation – where there is a breach of a fundamental term, the courts
may hold the agreement to be repudiated and the contract to be at an
end (Hussein v Mehlman (1992)).
9 A ‘break clause’ – this can occur in commercial leases and it will allow
either the landlord or the tenant to determine the lease on certain dates
before the term expires.
210 Leases
Z 13.5 The regulation of leases

13.5.1 Express covenants

1 There may be express obligations of both the landlord and the tenant in
the lease.
2 The landlord may be bound in respect of repair, insurance and general
maintenance of the premises.
3 The tenant may be bound by an obligation to pay rent or not to assign or
sublet the premises.
13.5.2 Implied covenants

1 Where the lease is silent, common law or the lease will imply certain
covenants into the agreement.
2 The landlord’s implied covenants:
a) quiet enjoyment;
b) non-derogation from the grant;
c) repair and fitness for habitation.
3 Quiet enjoyment:
O means the landlord will not interfere with the tenant’s enjoyment of
the property (Perera v Vandiyar (1953));
O covers the prevention of direct and physical injury to the land, as
well as less tangible interference caused by other tenants of the land-
lord (Southwark LBC v Mills (1999));
O is generally given a narrow construction;
O harassment of the tenant will be a breach of the covenant and will
also be an offence under the Protection from Eviction Act 1977;
O acts merely inconveniencing the tenant do not amount to a breach
of quiet enjoyment (Browne v Flower (1911)).
4 Non-derogation from the grant:
O the landlord must not do anything that prevents the tenant from
using the property for the purpose for which it was rented (Harmer v
Jumbil (Nigeria); Tin Areas Ltd (1921));
O it may be a derogation from the grant if the landlord does not restrain
a nuisance committed by other tenants of that landlord.
The regulation of leases 211
5 Repair and fitness for habitation:

O there is no general rule that a landlord must repair the property, nor
that it will be fit for occupation (Southwark LBC v Mills (1999));
O ‘fraud apart, there is no rule against letting a tumbledown house’,
Erle CJ (Robbins v Jones (1863)).
6 The common law implied covenants for repair:
O it is an implied condition that a furnished house will be reasonably fit
for human habitation at the commencement of the term (Smith v
Marrable (1843));
O this condition does not cover any deterioration of the premises
during the currency of the lease;
O a landlord may have an implied contractual duty to take reasonable
care to keep in repair certain facilities enjoyed by the tenant, e.g.
lifts, stairs and rubbish chutes (Liverpool City Council v Irwin (1977));
O there may also be limited liability that may extend to third parties as
well as the tenant him/herself.
7 Statutory obligations of the landlord to keep the premises in good
repair:
O sections 8–10 Landlord and Tenant Act 1985 apply to houses let at
low rent (set at such a low level that few properties qualify), and
imply that the premises are fit for human habitation both at the start
of the tenancy and throughout the lease;
O sections 11–16 Landlord and Tenant Act 1985 (only applies to leases
of dwelling houses of less than seven years) imply that the landlord
will keep in good repair the structure and exterior, including drains,
and also installations in the house for the supply of gas, water, elec-
tricity and sanitation;
O the landlord must be notified of the defect by the tenant before
liability will arise (O’Brien v Robinson (1973));
O the application may depend on how the courts interpret disrepair
(Quick v Taff Ely BC (1986));
O until recently, the courts have given disrepair a very limited defini-
tion: it does not involve improvement from the state of repair at the
start of the tenancy.
8 Under the Defective Premises Act 1972 s 4(1), the landlord has a
statutory duty to take reasonable care to prevent personal injury or
damage that may be caused by defects in the state of the demised
premises.
212 Leases
13.5.3 The usual covenants

1 The landlord agrees to be bound to allow the tenant ‘quiet enjoyment’.

2 The tenant agrees to:
O pay rent;
O pay rates and taxes;
O deliver up the premises in repair at the end of the term;
O allow the landlord to enter and view the premises at an agreed time
if he is responsible for repair;
O allow the landlord re-entry for non-payment of rent.
13.5.4 Remedies for breach of covenant

1 A landlord can:
O seek forfeiture of the lease, but this right must be expressly reserved
in the lease:
a) the landlord has the option to waive the forfeiture or to enforce
it;
b) enforcement of forfeiture will be by way of re-entry. Possession
proceedings are regarded as re-entry in residential premises
where the landlord can only regain access by order of the
court;
c) the courts have the power to grant relief against forfeiture;
O seek an injunction and action for specific performance (Jeune v
Queen’s Cross Properties (1974); Rainbow Estates v Tokenhold (1998));
both tenants and landlords can be awarded specific performance of a
covenant in a lease.
O sue for damages for breach of covenant.
2 A tenant can:
O sue for damages for breach of covenant;
O seek an order for specific performance;
O sue for distress for unpaid rent;
O take action for arrears of rent;
O use self-help and set-off (withholding future payments of rent), e.g.
Lee-Parker v Izzet (1971).
The enforcement of covenants 213
Z 13.6 The enforcement of covenants

13.6.1 Privity of contract and privity of estate

Privity of contract:
Privity of contract is the relationship between the two parties to a contract,
such as a landlord and a tenant. This is unique to the contracting parties.
Privity of estate:
Where either party assigns their interest, a new relationship arises between
the assignee and the original party called privity of estate.
1 Covenants may be enforceable against assignees of the landlord or
assignees of the tenant.
2 This will depend on whether there is privity of contract or privity of
estate between the parties.
Privity of contract
L
1
T1
Privity of estate
I
ST A 'V ► T2 ► T3
3 Before 1995, the landlord (L) and the tenant would remain liable for
covenants agreed under the lease for the whole term, even after assign-
ment (Hindcastle Ltd v Barbara Attenborough Associates Ltd (1997)). This
was because the parties had privity of contract and would remain liable
on the terms of the contract.
4 Where the contract is validly assigned, the original landlord remains
liable on the contract and T1 will remain ultimately liable for unpaid
rent, but T2 will be able to drop out of the picture when the tenancy is
assigned to T3.
214 Leases
5 If T sublets, then there will be privity of estate between T and ST

(sub-tenant), but ST cannot sue L as there is no relationship of landlord
and tenant between them. Likewise, L cannot sue ST.
13.6.2 The running of covenants in leases

1 The benefit of L’s covenants with T1 can run at law to T2. So too will the
benefit of T’s covenants with L run to L2.
2 The covenant must be shown to ‘touch and concern’ the land (Spencer’s
Case (1583)).
3 The burden of L’s covenants with T1 and T’s covenants with L1 will pass
to L2 if the covenants ‘touch and concern the land’ under s 141 (benefit)
and s 142 (burden) LPA 1925.
4 To ‘touch and concern’ the land means a covenant that relates to the
land itself, or affects the landlord as landlord or tenant as tenant, e.g. a
covenant to pay rent or to carry out repairs.
13.6.3 Tenancies under the old law

1 The running of covenants now depends on whether the tenancy was
created before 1 January 1996, referred to as an ‘old tenancy’.
2 An old tenancy resulted in continuing liability for the covenant even
after assignment.
3 These liabilities could even be increased after assignment as they could
be varied by the assignee.
4 There is no privity of contract and privity of estate between the landlord
and sub-tenant. The landlord can only sue the sub-tenant if:
a) a restrictive covenant is contained in the head lease under the rule
in Tulk v Moxhay;
b) the lease to the tenant contained a forfeiture clause which, if
enforced, will result in the sub-tenant’s lease being terminated.
13.6.4 New tenancies under the Landlord and

Tenant (Covenants) Act 1995
1 The Act removes liability from the tenant for the tenant’s covenants
contained in the original lease, but he/she loses any right to enjoy land-
lord’s covenants (s 5 L&T(C) Act 1995).
The enforcement of covenants 215
2 T will remain liable for any breaches that occurred before the lease was
assigned.
3 The principle of release cannot be varied by the parties (L&T(C) Act

1995).
4 There are two circumstances where there will be no release:
O where the assignment was an ‘excluded assignment’ because it was in
breach of covenant or operation of law;
O where release of T is postponed by the operation of an ‘authorised
guarantee agreement’.
5 An authorised guarantee agreement (AGA) means that T guarantees
the performance of the tenant’s covenants by T2. It can only be made
where there is an absolute covenant against assignment or when his/her
consent is given subject to a condition that the tenant is to enter into
an AGA.
6 Where the landlord assigns the reversion, there is no automatic release
from the covenants, but the landlord may give notice to the tenant and
ask for release from the covenant (s 6 L&T(C) Act 1995).
7 If the tenant refuses to release the landlord, he can apply to the court for
release.
13.6.5 Provisions under the Landlord and

Tenant (Covenants) Act 1995 applying
to old tenancies
1 The original tenant cannot be required to pay rent or service charges
owed by the present tenant unless the landlord has served a notice (a
‘problem’ notice) informing him/her that any charge is payable within
six months of the date it becomes due.
2 Liability of the tenant cannot be increased by variation of the
covenant.
3 The original tenant who has made such a payment of rent or other fixed
charge may require the landlord to grant him or her an ‘overriding lease’
so that the original tenant becomes the immediate landlord of the
current tenant.
216 Leases
Key Cases Checklist

THE NATURE OF A LEASE

Bruton V London & Quadrant Housing Trust (2000)
A lease can exist In law even where the landlord has no legal title to the land
Street v Mountford (1985)
A lease has these features: exclusive possession; for a fixed term and at a rent
i) A term
Lace V Chandler (1944)
The period of the lease must be certain
Prudential Assurance Co Ltd v London Residuary Body (1992)
Where land is retained until the owner requires it back no lease can exist
because the term is uncertain
ii) At a rent
Ashburn Anstalt v Arnold (1989)
A tenancy can exist without the payment of rent
iii) Exclusive possession
Somma v Hazelhurst (1978)
The intention of the parties indicates whether a lease is created
Street V Mountford (1985)
Overruling Somma v Hazelhurst a tenancy exists if the key features: rent;
exclusive possession and a fixed term exist
Aslan v Murphy (1990)
A sham device giving rights of entry to the landlord will not prevent a
tenancy from arising
Antoniades v Villiers (1990)
Retention of a right to live in the premises by the landlord will not prevent
exclusive possession if the term is deemed to be a ‘sham’
A-G Securities V Vaughan (1990)
Enjoyment of joint facilities under separate agreements gave rise to
separate licences
REMEDIES
SPECIFIC PERFORMANCE OF A COVENANT
Jeune V Queens Cross Properties Ltd (1974)
Rainbow Estates Ltd v Tokenhold (1999)
Both tenants and landlords can be awarded specific performance of a
covenant in a lease
FORFEITURE
Biilson V Residential Apartments Ltd (1992)
In most cases a tenant has the right to seek relief from forfeiture where
the landlord has re-entered the premises
WAIVER
Central Estates (Belgravia) v Woo/gar (1972)
Acceptance of rent after breach constitutes waiver of rights by the landlord
13.1.1.8 Bruton v London and Quadrant Housing Trust

[2000] 1 AC 406 HL
Key Facts
A housing trust had been granted a licence to use proper-

ties as temporary shelter for the homeless. The properties
were to be developed. The trust undertook that they would
not allow any of the occupiers to become tenants without
prior consent of the council. Mr Bruton signed an agree-
ment with the trust that he would occupy a self-contained
flat in one of these buildings on a temporary basis on a
weekly licence. Under the agreement he was to vacate
the premises upon reasonable notice from the trust. After
six years he claimed that he had a lease by estoppel.
Key Law
A lease had been granted to Mr Bruton. He had all the key

features of a tenant rather than a licensee – in particular, the
housing trust had to give him notice to vacate the premises.
Key Comment
The interesting feature of this case is that the lease could

be granted even though the housing trust did not have legal
title to the land. This has caused considerable criticism
because the tenancy will take effect in law and could be
enforced against third-party purchasers but the housing
trust who granted him the right to live there could not them-
selves claim a proprietary right in the land.
13.1.3 Street v Mountford [1985] AC 809 HL
Key Facts
An agreement was drawn up between the parties, Mr Street

and Mrs Mountford. It was called a licence but it had many
of the key features of a tenancy – in particular, the licensee
had exclusive possession of the premises. Mrs Mountford
claimed protection under the Rent Acts.
Key Law
The House of Lords found that a tenancy had been created.

The court adopted an objective approach to the agreement
218 Leases
and found that Mrs Mountford had the right to live in the
property:
O with exclusive possession;
O for a term;
O at a rent.
The court concluded that these were the key features of a
tenancy.
Key Judgment
Lord Templeman
‘If the agreement satisfied all the requirements of a tenancy,
then the agreement produced a tenancy and the parties
cannot alter the effect of the agreement by insisting that
they only created a licence. The manufacture of a five-
pronged implement for digging results in a fork even if the
manufacturer, unfamiliar with the English language, insists
that he intended to make and has made a spade.’
13.1.2.2 Lace v Chandler [1944] KB 368 CA
Key Facts
A tenant of a house granted a sub-lease to the defendant

during the Second World War for ‘the duration of the war’.
Key Law
The term was uncertain and therefore did not create a good
leasehold interest. A lease will not take effect if it is impos-
sible to say at the outset how long it will last. This prevents
the possibility that a lease will last forever and so deprive
the freehold owner of any rights.
13.1.2.2 Prudential Assurance Co Ltd v London

Residuary Body [1992] 2 AC 386 HL
Key Facts
An agreement had been made between the London County

Council and the owner of a strip of land fronting the
highway. The owner sold it to the Council but, in return,
leased it back on terms that it should continue ‘until the
land is required by the Council . . . for the purpose of

widening the highway’.
Key Law
The term was uncertain and so, following Lace v Chandler,

there could not be a lease of the land.
Key Judgment
Lord Templeman
‘A lease can be made for five years subject to the tenant’s
right to determine if the war ends before the expiry of five
years. A lease can be made from year to year subject to a
fetter on the right of the landlord to determine the lease
before the expiry of five years unless the war ends. Both
leases are valid because they create a determinable certain
term of years. A lease might purport to be made for the
duration of the war subject to the tenant’s right to determine
before the end of the war . . . A term must either be certain
or uncertain. It cannot be partly certain because the tenant
can determine it at any time and partly uncertain because
the landlord cannot determine it for an uncertain period.’
13.1.2.2 Berrisford v Mexfield Housing Co-operative

[2011] UKSC 53 SC
Key Facts
An agreement entered into between Ms Berrisford (the tenant)

and Mexfield Housing Co-operative (the landlord) gave the
tenant the right to end the tenancy on one month’s notice to
quit, whereas the landlord could only end the agreement if one
of a number of conditions was breached. Mexfield gave her
notice to quit in spite of the fact that none of these conditions
was satisfied. It argued that the agreement could not be a
lease because there was no certain term. It was not possible
to know what the maximum duration of the lease would be at
the start of the agreement as it was not possible to know when
any of the terms in the agreement would be breached by the
tenant. These were not under the control of the landlord.
Key Law
The Supreme Court found that the term was uncertain but it
could be saved by applying pre–1925 case law, allowing a
court to construe an uncertain term as one ‘for life’, which
220 Leases
would then be automatically converted into a 90-year lease

under s 149(6) LPA 1925. Ms Berrisford now held a 90-year

lease.
Key Comment
This leaves the law in an unsatisfactory state. From now on,

the law will treat a residential tenancy that is uncertain as a
lease for 90 years, whereas a commercial lease with an uncer-
tain term will fail. This is because you cannot have a lease for
life under s 149(6) for a company or partnership. It also puts an
obligation on the tenant to register the lease and the tenant
loses protection under the Landlord and Tenant Act 1985 of
certain repairing covenants (see above under 13.5.2).
This case upholds the requirement from Street v Mountford
that an agreement must have a certain term at the start in
order to take effect as a lease.
13.1.3.5 Ashburn Anstalt v Arnold [1989] Ch 1 CA
Key Facts
An agreement was concluded between the parties that the

claimants would have rights to enjoy land for a term but
without the payment of rent.
Key Law
The Court of Appeal concluded that a tenancy could take

effect even where the parties did not pay rent, in spite of
Lord Templeman’s judgment in Street v Mountford.
Key Judgment
Section 205(1)(xxvii) LPA 1925 defines a term of years

absolute without referring to the need for rent; indeed, it
expressly says ‘a term of years . . . taking effect either in
possession or in reversion whether or not for rent’.
13.2.2.3 Somma v Hazelhurst [1978] 1 WLR 1014 AC
Key Facts
A young married couple moved into a double bed-sitting

room for which they paid weekly rent. The landlord did not
provide services to them such as meals or bed linen or

cleaning. The agreement reserved the right to the landlord

to move in himself or to move in anyone he wished to live in
the premises with them.
Key Law
The fact that the parties called the agreement a licence was
conclusive and the features that suggested it was a lease
were less important than the intention of the parties. This
case was overruled in Street v Mountford (1985).
13.1.3 Street v Mountford [1985] AC 809 HL
Key Law
This case turned on the fact that Mrs Mountford had exclu-
sive possession of the premises. It was decided that it
was this feature that would distinguish a lease from a
licence.
Key Problem
Would it be possible today, after Street v Mountford, to

enter into a licence that had the features of a tenancy? If
not, has this affected parties’ freedom in relation to leases
and licences?
13.1.1.2 Aslan v Murphy [1990] 1 AC 417 CA
Key Facts
Property was let on terms that the owner would retain keys
and enjoy the absolute right to enter at all times. It was
called a licence. The owner also inserted a term requiring
the claimant to vacate the premises for an hour and a half
each day.
Key Law
This agreement was a tenancy. The terms retaining the

right of entry for the landlord and requiring the premises to
be vacated each day were ‘sham devices’, which were
inserted in order to prevent the agreement from becoming
a lease. The court also thought that the retention of keys
222 Leases
did not prevent the agreement from becoming a tenancy

in law.
13.1.1.3 Westminster City Council v Clarke [1992] 2

AC 288 HL
Key Facts
The council ran a hostel for the homeless and retained the
right to be able to move someone from one room to another
at any time. It was held that this prevented any of the resi-
dents from claiming that he had a tenancy since he did not
have exclusive possession.
Key Judgment
Lord Templeman
‘. . . in the circumstances of the present case I consider
that the Council legitimately and effectively retained for
themselves possession of room E and that Mr Clarke was
only a licensee with rights corresponding to the rights of a
lodger’.
13.1.1.10 Antoniades v Villiers [1990] 1 AC 417 HL
Key Facts
A couple occupied premises jointly and had exclusive

occupation. The two had signed separate agreements
which reserved the right of the landlord to go into occupa-
tion of the flat or to move others into the flat. The agree-
ments were called licences.
Key Law
The agreements took effect as leases. The insertion of

terms allowing the landlord to move himself or others in
were purely there as a sham in order to prevent the lease
from taking effect at law. The fact that the parties signed
two separate agreements did not prevent the parties from
becoming joint tenants since the agreements were identical
in form and took effect at the same time, and all four unities
were present.
13.1.1.9
A-G Securities v Vaughan [1990] 1 AC 417 HL
Key Facts
The House of Lords found that where four people shared a

flat as independent occupiers, their agreements could be
seen as separate licences for each occupier. The start
dates of the agreements were different, as were other
terms, so the four unities necessary for a joint tenancy to
arise were not present. Each occupier had joint use of the
bathroom, kitchen and the sitting room but each had sole
use of his bedroom.
Key Law
Each tenant enjoyed rights as licensees only. If this were a

joint tenancy in law, then if one person died the remaining
tenants would assume the legal tenancy until eventually
there would be only one left.
Key Comment
Both the tenant and the landlord can seek specific perform-
ance of a covenant in a lease but it is most unusual for the
court to award it. The tenant was granted specific perform-
ance of a repairing covenant in Jeune v Queens Cross
Properties Ltd [1974] Ch 97. This right was extended to
landlords in Rainbow Estates Ltd v Tokenhold [1999] Ch 64.
This is unusual and it is thought more appropriate for the
court to award forfeiture.
14 Adverse
possession
f
Traditional meaning Nature of rights under LRA 2002
• No action shall be brought by • after 10 years the squatter can
any person to recover any land apply to register his/her title;
after 12 years - Limitation Act • notice is given to the paper title
1980 s 15. owner and others;
• Can be consecutive periods. • registration takes place if there is
• Section still applies in no objection.
unregistered land only.
OR in three other cases:
• estoppel;
• some other right in the land;
• boundaries.
1 У
ADVERSE POSSESSION
Recovery of land by paper

title owner
Factual possession • Must take legal proceedings.
• Physical possession of the • Can exercise self-help in
land, excluding all others. limited circumstances.
• Not by a lease, licence or • Can seek possession and
consent. interim possession order in
• Must be exercised openly. county court.
• Enclosure is strong evidence,
e.g. parking cars; fencing;
grazing animals.
Intention
Must show
intention to treat
land as ones own.
Factual possession 225
Z 14.1 The meaning of adverse possession

1 Adverse possession is a doctrine allowing a squatter to claim rights in

land if certain rules are satisfied and if the paper title owner fails to evict
a squatter or trespasser from his land within a certain period.
2 The right of action starts to run when two elements are present:
O paper title owner has given up possession of the land (either because
he has been dispossessed or because he has discontinued his
ownership);
O a squatter takes possession of the land.
3 Consecutive periods of adverse possession by different people may be
added together (Mount Carmel Investments Ltd v Peter Thurlow Ltd
(1988)), provided there is no break between these periods.
4 A squatter must prove:
O that he has taken factual possession of the land;
O that he has the necessary intention or animus possidendi.
5 Different procedures apply for unregistered and registered land but in
both cases the squatter must prove factual possession and intention to
possess.
Z 14.2 Factual possession

1 This involves physical possession of the land, which excludes all others
including the paper title owner (Powell v Macfarlane (1977)).
2 Possession must be ‘adverse’ to the paper title owner, so it cannot be
enjoyed by virtue of some legal right such as a lease, licence or
consent from the paper title owner (Colchester BC v Smith (1992), BP
Properties v Buckler (1987)).
3 Adverse possession need not be hostile to the paper title owner.
4 The factual possession of the land must be exercised openly and must
not be concealed, to ensure that the paper title owner is given an oppor-
tunity to challenge the possession.
5 Squatters must prove that they have physical control over the property
(Bucks CC v Moran (1990)).
6 ‘Enclosure is the strongest possible evidence of adverse possession’ –
Cockburn CJ in Seddon v Smith (1877); (Bucks CC v Moran (1990)
– a new lock and chain on the gate into the part of the land claimed by
the squatter). Fencing is always good evidence of possession.
226 Adverse possession
7 Factual possession cannot be based on trivial acts of possession (Tecbild

Ltd v Chamberlain (1969)).
8 What constitutes evidence of factual possession?

O Parking of cars (Burns v Anthony (1997)).
O Grazing of animals (Treloar v Nute (1976)).
O The erection of signs excluding trespassers (Powell v Macfarlane
(1977), although no adverse possession was held in that case).
O Shooting over a large area of land (Red House Farms v Catchpole
(1977)) where this was the only conceivable use to be made of the
land.
O Fishing and dredging the river bed (Roberts v Swangrove Estates
Ltd (2007)).
9 The evidence necessary for factual possession will vary according to the
type of land.
Z 14.3 The intention to possess

1 The squatter must show that he intended to treat the land as his own.
2 Hoffman J in Bucks CC v Moran (1990): ‘. . . the critical factor in
adverse possession is not an intention to own but an intention to possess’.
3 Generally, intent is inferred from acts and is not based on declarations
from the squatter himself.
4 Evidence from a squatter that he would have accepted a licence or lease
from the owner is not fatal to a claim for adverse possession if no lawful
right was granted (Pye v Graham (2001)).
5 The paper title owner cannot rely on the doctrine of implied licence
(Limitation Act 1980 Sch 1). This doctrine suggested that the owner
could impliedly reserve himself the right to return to the land in the
future without taking action to prevent the continued enjoyment of
the property by the squatter if the squatter knew of his plans for the
future.
6 The fact that the squatter expects to be evicted at any time does not
prevent him from having the intention to possess (Lambeth LBC v
Blackburn (2001)).
Recovery of possession by the paper title owner 227
Z 14.4 The nature of the rights in

adverse possession
1 Once the squatter acquires rights in the property, they are good against
the world except anyone able to assert a better title.
2 Rights of a squatter can be assigned inter vivos or passed under a will and,
if the squatter dies intestate, the rights can pass to the next of kin.
However, there must be no evidence of a break in possession.
Z 14.5 Recovery of possession by the paper

title owner
1 An action for recovery by the paper title owner must be brought before
his right of recovery becomes statute-barred in unregistered land.
2 An action for possession requires the paper title owner to take legal
proceedings and it is not enough to assert one’s rights (Mount Carmel
Investments Ltd v Peter Thurlow Ltd (1988)).
3 Adverse possession can constitute a criminal offence under the Criminal
Law Act 1977 s 7(1) and the Criminal Justice and Public Order Act
1994 ss 73 and 74 if a person, having entered as a trespasser, fails to
leave premises on being required to do so.
4 Under civil law the paper title owner may exercise self-help at any stage
before the squatter acquires possession of the property, but it must not
itself constitute a criminal offence.
5 The paper title owner can also take an action for possession, which can
be available even where the names of the squatters are unknown. The
documents can be served by fixing the relevant documents at the
premises.
6 Under the changes made under the Land Registration Act 2002, a paper
title owner need only object to a request to register in order to prevent
registration, but action to recover the land is necessary if the squatter
fails to give up the land.
7 The county court can also make an ‘interim possession order’ against an
alleged trespasser on residential premises. Once made, the order takes
effect immediately and the hearing for a final possession order will be
made during the next seven days.
8 Under s 144 Legal Aid Sentencing and Punishment of Offenders Act
2012, it is a criminal offence for someone to take possession of a residen-
tial building belonging to another (squatting).
The three key elements of the offence are:

a) the person is in a residential building belonging to another, having
entered as a trespasser (someone holding over on the expiry of a lease

will be excluded);
b) the person knows or ought to have known that he or she is a
trespasser;
c) the person is living in the building or intends to live there for any period.
Z 14.6 Adverse possession of

unregistered land
1 The squatter must prove that he/she has completed the limitation period
of 12 years as laid down in s 15 of the Limitation Act 1980.
2 The squatter must prove intention to possess and also factual
possession.
3 The squatter is regarded as having rights in the land whilst he/she is in
possession but subject to being defeated by the owner of the land
reclaiming rights over the land.
4 Once the time has run, the owner’s rights are statute-barred and
extinguished.
5 The squatter will be bound by any third-party rights affecting the land,
whether or not he/she has notice of these rights.
Z 14.7 Main changes in the rules on adverse

possession introduced by the LRA 2002
1 The LRA 2002 introduced new rules in relation to the acquisition of
rights by adverse possession over registered land.
2 The Act does not affect the rules relating to unregistered land.
3 The Act does not change the rules concerning proof of adverse posses-
sion such as discontinuance and dispossession of land, or the rules
concerning factual possession and intention to possess. These remain
the same for both registered and unregistered land.
14.7.1 Adverse possession of registered land

1 Under the new law, adverse possession will not extinguish title to a
registered estate.
Main changes in the rules on adverse possession introduced by the LRA 2002 229
2 A squatter can apply to be registered as proprietor after 10 years’ adverse

possession.
3 The registered proprietor, any registered chargee and others interested

in the land will be notified by the Land Registry of the squatter’s
application.
4 If the application is not opposed by any of those notified, the squatter
can be registered as proprietor immediately.
5 If any of those notified oppose the squatter’s application, it will be
refused, unless the squatter can bring himself within one of the three
exceptions:
O estoppel;
O some other right in land;
O reasonable mistake over boundaries.
6 If the application is refused but the squatter remains on the land then
the squatter can make a further application after two more years and will
be registered as proprietor whether or not the registered proprietor
objects.
14.7.2 Special cases under the Act

1 Estoppel: the squatter must show that it was unconscionable to dispos-
sess him/her, and that the circumstances are such that he/she ought to
be registered as the proprietor:
O It will be unconscionable if the registered proprietor encouraged or
allowed the squatter to believe that he or she owned the land.
O The squatter acted to his or her detriment to the knowledge of the
proprietor.
O It would be unconscionable for the proprietor to deny the squatter
the rights that he/she believed he/she had.
O The remedy can range from transfer of the property (Pascoe v Turner
(1979)) to the grant of some right over the land (Crabb v Arun DC
(1976)).
2 Some other right to the land. Examples could be:
O the claimant is entitled under the will or intestacy of the deceased
proprietor;
O the claimant has contracted to buy the land and paid the purchase
price but the legal estate was never transferred to the buyer. Claims
under this provision will be relatively rare.
3 Mistake as to the boundary. The squatter must prove:

O there has been a period of adverse possession of at least 10 years by

the squatter or the squatter’s predecessor in title ending on the date
of the application;
O for at least 10 years the squatter reasonably believed that the land to
which the application relates belonged to him;
O the estate to which the land relates was registered more than one
year prior to the date of the application.
14.7.3 The effect of registration under

the LRA 2002
1 Under the old law, the registered proprietor held the land on bare trust
for the squatter.
2 Under the new law, there is no trust but automatic entitlement to be
registered as the new proprietor as of right.
3 The squatter will take the land subject to the same estates, rights and
interests that bound the previous proprietor.
4 The rights of a squatter no longer constitute an overriding interest in
land.
Z 14.8 Adverse possession in leasehold land

1 Adverse possession of land held by a tenant will prevent the tenant from
recovering his land and extinguishes his title as against the squatter. The
landlord can recover from the squatter once the tenant surrenders the
lease to the landlord (St Marylebone Property Co Ltd v Fairweather
[1963]).
2 The squatter cannot claim rights against the landlord who can recover
possession from him once the lease has ended.
Z 14.9 Adverse possession and human rights

1 The acquisition of rights under the doctrine of adverse possession is poten-
tially incompatible with the provisions of the European Convention of
Human Rights.
2 In JA Pye (Oxford) Ltd v United Kingdom (2005), Pye Ltd appealed to
the European Court of Human Rights claiming that its rights under
Adverse possession and human rights 231
Article 1 and Protocol One of the European Convention on Human

Rights had been breached by the law on adverse possession in the UK.
The court found in its favour by a majority of four votes to three and
ordered the UK government to pay compensation to Pye Ltd. The
government appealed to the Grand Chamber of the European Court of
Appeal.
3 In Pye (JA) (Oxford) Ltd v UK (2007), the Grand Chamber of the
European Court of Human Rights, by a majority of 10 votes to seven,
overturned the earlier finding, holding that the law on adverse posses-
sion in the UK under both the Land Registration Act 2002 and the Land
Registration Act 1925 was compatible with human rights. The court
found that the balance between the individual owner’s peaceful enjoy-
ment of his possessions and the demands of the public interest was main-
tained. The court also held that the limitation period pursued a
legitimate aim in the general interest. It held that the paper title owner
in Pye must have been aware of the statutory limitation principle and
was not without procedural protection.
4 One further human rights challenge has been made. In Ofulue v Bossert
(2008), the Court of Appeal dismissed a claim by the owner that his
human rights had been violated under Article 1 of Protocol One. The
court applied Pye v UK and held that it should be followed unless there
were exceptional reasons for not following it, and there were no such
reasons here.
5 The decision in Pye Ltd v UK effectively prevents any landowner from
pleading violation of their human rights as a defence to a claim by a
squatter. The only possibility of pleading violation of one’s human rights
would be to show that there are exceptional circumstances. The court
did not explain what these might be in Ofulue v Bossert (2008).
Key Cases Checklist

MEANING OF ‘ADVERSE POSSESSION’

Red House Farms (Thomdon) Ltd v Catchpole (1977)
Evidence of factual possession depends on the type of land
FACTUAL POSSESSION
Tecbild V Chamberlain (1969)
Trivial acts of trespass do not constitute factual possession of land
INTENTION TO POSSESS
Lambeth LBC v Blackburn (2001)
Powell V Macfarlane (1977)
Adverse possession Involves proof of Intention to exclude all others
Including the owner from the land
Bucks County Council v Moran (1990)
Intention to possess Is not an Intention to own the property
Pye V Graham (2001)
The Intention to possess Is not undermined where the squatter admits they
would have paid for the right to occupy
HUMAN RIGHTS
Pye (JA) (Oxford) Ltd v U K {2008)
The Grand Chamber of the European Court of Human Rights concluded
that the law on adverse possession in UK law both pre- and post-LRA 2002
was not contrary to human rights
Ofulue V Bossert [2008] 3 WLR 1253
A landowner cannot challenge a successful application for adverse
possession on the basis of Article One Protocol One of the ECHR
LAWFUL POSSESSION
BP Properties V Buckler (1987)
Time ceases to run once a person is offered a lawful right to be on the property
LEASEHOLD PROPERTY
St Marylebone Property Co Ltd v Fairweather (1963)
A squatter can be evicted by a landlord in unregistered land even after the
tenant has been dispossessed. The rule is different in registered land
14.2.8 Red House Farms (Thorndon) Ltd v Catchpole

[1977] 2 EGLR 125 CA
Key Facts
The squatter based his claim over land on evidence of

shooting over the land. It was marshy and unsuitable for
growing crops or grazing animals. Access was limited as a
bridge had collapsed. It was accepted that shooting alone
was proof of factual possession.
Key Law
The claimant must show evidence of factual possession.

This will depend on the type of land. If the land is unsuitable
for all but very limited infrequent use then this may be suffi-
cient evidence of factual possession.
14.2.7 Tecbild v Chamberlain (1969) 20 P & CR 633 CA
Key Facts
The claimant failed to persuade the court that allowing his

children to play on land and to tether and exercise their
ponies constituted acts of factual possession.
Key Law
The acts were held to be merely trivial acts of trespass.
14.2.1 Powell v Macfarlane (1977) 38 P & CR 452 HC
Key Facts
A 14-year-old boy started grazing his cow on some vacant

land. He did this intermittently for some years, as well as
cutting a hay crop, carrying out repairs to the boundary
fence, cutting back undergrowth and connecting a
rudimentary water supply system. He added a goat and
other cows to the land. However, the judge did not think
that that was sufficient evidence of an intention to possess.
In particular, he did not think that someone so young could
form such an intention.
Key Law
Adverse possession involves proof of an intention to

possess and that meant the claimant must intend to
exclude all others from the land, including the owner.
Key Judgment
Slade J
‘(T)he courts will . . . require clear and affirmative
evidence that the trespasser, claiming that he has acquired
possession, not only had the requisite intention to possess,

but made such an intention clear to the world.’
14.2.5 Bucks County Council v Moran [1990] Ch 623 CA
Key Facts
A local authority had acquired land for future road develop-

ment. This was incorporated into the garden of one of
the neighbouring landowners. Bulbs were planted, hedges
were trimmed, the grass was cut and a fence was erected
around it. Later, a gate was put into the fence, secured by
a lock and chain that prevented access by anyone but the
squatter. These acts were sufficient to constitute acts of
factual possession.
The court did not accept the local authority’s claim that the
squatter was aware of the future plans for the plot and this
prevented him from forming an intention to possess the land.
Key Law
Adverse possession is based on an intention to possess. It

does not require proof of an intention to own or even an
intention to own in the future. Knowledge of plans for future
use of the land does not prevent a squatter from success-
fully claiming possession so long as there is very clear
evidence of possessory acts and intentions.
14.3.4 JA Pye (Oxford) Ltd v Graham [2001] Ch 804 HL
Key Facts
The defendants had farmed land over a period of years

under licence from the claimants. The acts included grazing
large numbers of cattle, caring for the land by ploughing and
applying fertiliser; trimming the hedges every year and main-
tenance of all fences and ditches. After the licence expired,
the defendants requested a further licence but the claimants
refused this. The defendants remained in occupation and the
claimants ignored subsequent requests for a further licence.
The court held that the continued acts were adverse to the
owner and the defendants successfully claimed rights over
the land under the pre-Land Registration Act 2002 rules.
It was held that the adverse possessor need only prove
intention to possess and not an intention to own the land.
This intention would not be undermined where the adverse

possessor admitted that he would have been prepared to

pay the owner for a licence to occupy the land.
Key Judgment
Neuberger J
‘It is hard to see what principle of justice entitles the tres-
passer to acquire the land for nothing from the owner
simply because he has been permitted to remain there for
12 years.’ (At first instance.)
Key Judgment
Lord Browne-Wilkinson
‘There will be a “dispossession” of the paper owner in any
case where . . . a squatter assumes possession in the ordi-
nary sense of the word. Except in the case of joint posses-
sors, possession is single and exclusive. Therefore, if the
squatter is in possession, the paper owner cannot be. If the
paper owner was at one stage in possession of the land but
the squatter’s subsequent occupation of it in law consti-
tutes possession, the squatter must have dispossessed the
true owner.’
14.3.6 Lambeth LBC v Blackburn (2001)

82 P & CR 39 CA
A squatter appealed against an order for possession by

the local authority claiming that he had had possession for
12 years. The local authority maintained that he had not
shown the requisite intention to possess. The squatter had
first entered the property by forcing the lock but he had
since installed his own lock and gradually improved the
property.
His claim was upheld. The fact that he expected to be
evicted at any time did not prevent him from having that
intention.
14.2.2 BP Properties v Buckler (1987) 55 P & CR 337 CA
Key Facts
Mrs Buckler was sent a letter by the owner of the property

offering her a licence to occupy. She did not respond to the
letter as she believed that she had a lawful right to be on the

premises. The licence was binding on Mrs Buckler and

once she received the offer, time ceased to run against the
legal title owner of the land.
Key Law
Time will cease to run in favour of a person in adverse

possession once they are offered a lawful right to be on the
property, either through a licence or a lease. Time will only
continue to run if the offer is refused, not if it is simply
ignored.
14.1.3 Mount Carmel Investments Ltd v Peter

Thurlow Ltd [1988] 1 WLR 1078 CA
A demand in writing sent to the squatter seeking reposses-

sion of the land could not stop time running against the
paper title owner of the land. The mere sending and receipt
of a letter demanding recovery of land could not stop time
running for the purpose of the Limitation Acts.
14.8.1 St Marylebone Property Co Ltd v Fairweather

[1963] AC 510 HL
Key Facts
A squatter had dispossessed a tenant of a property for a

period of 12 years and was entitled to occupy under the
lease until it expired. The tenant voluntarily surrendered his
lease to the landlord who then had the right to recover his
property from the squatter.
Key Comment
Traditionally, the law was applied differently in cases of

adverse possession against a tenant according to whether it
was registered or unregistered land. In unregistered land
cases, the landlord retains the right to recover the land
against the squatter whereas, in registered land, recovery of
the land against the squatter is delayed until the original
lease has expired. Then the rights of the squatter end
because they only acquire the rights of the tenant whom
they dispossessed and not the legal estate vested in the
landlord (Spectrum Investment v Holmes [1981] 1 WLR 221).
In 2005, Pye Ltd took its case to the European Court of

Human Rights. They claimed that Article 1 and Protocol

One of the European Convention on Human Rights had
been breached by the law on adverse possession in the
UK. The court found in its favour by a majority of four votes
to three and ordered the UK government to pay compensa-
tion to Pye Ltd. The UK government appealed to the Grand
Chamber of the European Court of Appeal.
14.9.3 Pye (JA) (Oxford) Ltd v UK (2007)

46 EHRR 1083 ECHR
By a majority of 10 votes to seven, the Grand Chamber over-
turned the earlier finding. The law on adverse possession in
the UK, both the Land Registration Act 2002 and the Land
Registration Act 1925, was compatible with human rights.
The court found that the balance between the individual
owner’s peaceful enjoyment of his possessions and the
demands of the public interest was maintained. The court
also held that the limitation period pursued a legitimate aim
in the general interest. They held that the paper owner in Pye
must have been aware of the statutory limitation principle
and was not without procedural protection.
14.9.4 Ofulue v Bossert [2008] 3 WLR 1253 CA
Key Facts
Mr Ofulue purchased some property in England that he let

to tenants before returning to live in Nigeria. In 1981 the
tenant let the claimant, Mr Bossert, and his daughter into
the property and they started to carry out improvements to
it. Mr Ofulue returned from Nigeria from time to time and
asked them to leave but he did not pursue proceedings
to recover the property from them. In 2000 possession
proceedings were brought against them. These were
dismissed and fresh proceedings were brought in 2003.
The court found that time had run against the owner and
upheld the claim of adverse possession by the claimants.
Key Law
The Court of Appeal dismissed a claim by the owner that

his human rights had been violated under Art 1 Protocol
One. The court applied Pye v UK and held that it should be
followed unless there were exceptional reasons for not

following it, and there were no such reasons here.
14.9.4 Ofulue v Bossert [2009] 2 WLR 749 CA
Key Facts
A further appeal by the landowner was dismissed. The land-

owner claimed that time ceased to run when the squatter
made an offer to buy the property. The offer had been
refused and time did not cease to run.
Key Comment
The decision in Pye v UK effectively prevents any landowner

from pleading violation of his human rights as a defence
to a claim by a squatter. The only possibility of pleading
human rights would be to show that there are exceptional
circumstances.
Index
abandonment unregistered land 225, 227–8,

easements 144 236
absolute freehold title 42 airspace 2, 10–11, 12
Access to Neighbouring Land Act annexation
1992 3, 11, 137 covenants in equity 162–3, 171,
actual notice 5, 32, 35, 37–8, 40, 174–5
164, 189 fixtures or chattels 17–21
undue influence 185 auctions 25
actual occupation authorised guarantee agreement
overriding interests 38, 45–6, (AGA) 215
47–9, 53, 54–8, 82
Administration of Justice Act 1970 bankruptcy
186, 188, 199–200 mortgagees 187
advancement, presumption of severance of joint tenancy 107
60, 69 trustee in 122, 129–31
adverse possession 51 bare licences 3, 47, 94
factual possession 225–6, 228, bare trusts 42, 230
232–4, 235–6 beneficiaries 59
human rights 230–1, equitable interest 4, 59
237–9 occupy, right to 119, 124, 128,
intention to possess 226, 228, 131
234–5 trusts of land: rights of 119–21,
key cases checklist 232–8 124, 128, 131
leasehold land 224, 230, 236 bona fide purchaser for value
main changes with LRA 2002 without notice 32–3,
227–30 37–8
meaning of 225, 235–6 boundaries
nature of rights in 227 adverse possession: reasonable
overriding interests 46, 51, 230 mistake over 229–30
overview 224 fencing 135, 151, 225
paper title owner: recovery of break clause in lease 209
possession 227–8 burden of proof
registered land 225, 228–30, presumed undue influence 184
236 proprietary estoppel 81–2
240 Index
burdens on register 41–4, 51, 57, children

142, 180, 189 actual occupation: minors
overriding interests 47 48, 56

priority 43–5 adverse possession 233–4
business property/premises/venture equitable estate in land
break clause in lease 209 118, 207
Landlord and Tenant Act 1954 legal estate in land 118, 207
206 presumption of advancement 60
mortgages 194 trustee in bankruptcy 122,
proprietary estoppel 25–6, 29 129–30
resulting trusts 61, 68 trusts of land 118, 121,
tenants in common 106, 111 128–9
uncertain duration: commercial undue influence 185
lease 220 chose in action 159
clean hands 83
caution 180 co-ownership
charges forfeiture rule 108, 116
Land Charges Registry 32–4, homicide 108, 116
36–7, 144, 163–4, joint tenancy 104–6,
173, 180 110, 204
Land Registry: charges key cases checklist 109–16
register 40, 54, 142–3, legal estate 104–5
164, 173, 180 overview 103
local land 46 severance of equitable estate
charities 41 104, 106–8, 111–17
chattels 13–17 tenancy in common 104–6,
fixtures or 8–9, 17–21 110–11
checklists of key cases types of 103–4
adverse possession 232–9 co-ownership of land after 1996 see
co-ownership 109–16 trusts of land
covenants 168–77 cohabitation
easements 145–56 joint tenants or tenants in
informal creation of rights in common 110
land 66–79 Law Commission 65, 73
land 10–23 resulting or constructive trust
leases 216–23 61, 70, 76
licences 96–102 undue influence 185
mortgages 190–201 see also constructive trusts
proprietary estoppel 84–92 collateral contracts 25
registration of title 52–7 commercial transactions see
transfer and creation of rights in business property/premises/
land 27–30, 36–8 venture
trusts of land 123–32 commonhold 167
Index 241
Commons Registration Act 1965 Consumer Credit Act 1974 182

143 Consumer Credit Act 2006 183
companies 41 contracts
liquidation: disclaimer of lease adverse possession 229
209 contractual licences 47, 94–5,
see also business property/ 97–102
premises/venture equitable interest 4, 25,
compensation 30, 33
discharge or modification of equitable mortgages 181
covenants 165 exchange of 4, 25, 27–8, 30
see also damages oral 25, 81, 207
completion and registration 26, 51 privity of contract 158,
conditional fee simple 7 213–14
consent requirements of s 2 LP(MP)A
adverse possession 225 1989 25–30, 68–9, 81, 95,
restriction on register 43 141, 181
trusts of land 121 Contracts (Rights of Third Parties)
consideration Act 1999 159
burdens and disposition without conveyancing 24
valuable 44 aims of 1925 legislation 32
nominal 36–7 completion and registration
constructive notice 5, 35, 189 26, 51
undue influence 185 electronic 51
constructive trusts 69 exchange of contracts 4, 25,
assessing shares of parties 63–4, 27–8, 30
74–8 lock-out agreements 24–5, 27
definition 61–2, 72–3 overview 23
detrimental reliance 62–3 pre-contractual enquiries 24–5,
effect of Stack v Dowden 27
and Jones v Kernott on unregistered see separate entry
implied 64 corporeal hereditaments 4
express bargain 61–2, 70–1 Court of Protection 107
formalities of s 2 LP(MP)A 1989 covenants
26–7, 29 at law 158–60, 168–72
future for 64–5 commonhold 167
implied bargain 61–2, 63–4, 75 discharge 165
key cases checklist 66, 69–70, easement of fencing 151
71–8 in equity 158, 161–4, 168,
licences 47, 94–5, 101–2 170–7
remedial 65 key cases checklist 168–77
transfer ‘subject to’ certain rights in leases 43, 206, 210–15,
44, 57 219–20, 223
trusts of land 118 modification 165
242 Index
nature of 158 new tenancies under Landlord

non-overreachable rights and Tenant (Covenants)
120 Act 1995 214–15

reform 166–7 privity of contract 213–14
registration 40, 52, 163–4, privity of estate 213–14
173 quiet enjoyment 210
remedies for breach 165–6, 177, remedies for breach 212–13,
212, 223 223
unregistered land 33, 37, 164 repair 210–11, 219–20, 223
covenants at law 158 running of 214
avoiding rule in Austerberry tenancies under old law
160 214–15
key cases checklist usual 212
168–73 creation of rights in land
overview 157 informal see implied trusts
passing of benefit 158–9, transfer and see separate entry
169–70, 170–1 credit agreements
transferring benefit 159 extortionate 182–3
transmission of burden 160, creditors
169, 171–3 trustee in bankruptcy 122,
covenants in equity 158 128–31
annexation 162–3, 170–1, trusts of land: secured 121–2,
174–6 126–7
assignment 163 Criminal Justice and Public Order
easement of fencing 151 Act 1994 227
key cases checklist 168, Criminal Law Act 1977 227
170–7 criminal offences
overview 157 adverse possession 227–8
passing of benefit 162–4, 170–1, leases 209–10
174–7 curtain principle 40
passing of burden 164 customary rights
running of burden 161, overriding interests 46
172–4
scheme of development damages 24, 27
163–4, 175–7 breach of covenant 165–6,
Tulk v Moxhay, rules derived 177, 212
from 161, 173–4, 214 see also compensation
covenants in leases 43, 206, Dearle v Hall, rule in 188–9
210–15 death
authorised guarantee agreement joint tenancy 104, 108, 116
(AGA) 215 personal representative 120
express 210 tenancy in common 105
implied 210–11 see also intestacy; wills
Index 243
deeds 4, 5, 26, 198 s 62 LPA 1925 138–9, 143,

easements 136, 141 152–3
surrender of lease 209 transfer at law 142–3

Defective Premises Act 1972 transfer in equity 143–4
211 Wheeldon v Burrows, rule in
delay 81 137–8, 151–2
determinable fee simple 7 employer-provided premises 203
Equality Act 2010 60
e-conveyancing 51 equality is equity 76
easements 4, 8 equitable maxims
abandonment 144 clean hands 83
characteristics 134–5, 146–50, delay 83
155–6 equality is equity 76
common intention 137, equity follows the law 64, 76, 78,
141, 154 106, 110
dominant/servient tenement equitable rights 6, 62
134–5, 148 beneficiaries under trust 4, 59
equitable 33, 46, 49, 51–2, contracts 4, 25, 30, 42
136, 141–4 improperly created 5
excessive use 135, 156 statutory reform 5
express grant 136, 145 unregistered land 5, 33–5
extinguishment of 144 estate contracts 47
fencing 135, 151 unregistered land 33, 36–7
grant of 136–9 estates in land 3–4, 6–7
implied grant 136–9, 141, 143, estoppel see proprietary estoppel
146–7, 151–6 European Convention on Human
key cases checklist 145–56 Rights
legal 45–6, 49, 51, 138, adverse possession 230–1,
141–4 236–8
light 134, 140 bankruptcy 122, 130
necessity 137, 141, 155 eviction 206
non-exclusive use 135, exchange of contracts 4, 25, 27, 30
148–50 express trusts 59
non-overreachable rights 120 trusts of land 118
overriding interests 45–6, 49, 51,
142–3 family home
overview 133 occupation rent 121, 128–9
park, right to 135, 149–50 see also cohabitation;
prescription 139–40, 141–2, matrimonial home
155 Family Law Act 1996 47, 52
quasi- 138, 151 fee simple 6, 7
release 144 fee simple absolute in possession
reservation of 141 7, 41
244 Index
fee tail 6 imputed notice 5

fencing 135, 151 incorporeal hereditaments 4
adverse possession 225 indemnity

‘finders keepers’ 9, 13–15 covenants 160
fixtures register: alteration and 40,
chattels or 8–9, 17–21 49–51
tenant’s 9, 21–2 index-linking mortgage
forfeiture commitments 182
leases 208–9, 212, 214, 223 inherent jurisdiction of court
severance by homicide 108, oppressive interest rates 182
116 postpone possession proceedings
Forfeiture Act 1982 108, 116 186
franchises injunctions
overriding interests 46–7 contractual licences 95
fraud covenants 165–6, 176–7, 212
co-ownership 107 Insolvency Act 1986 122, 129–30,
definition 44 130
disclaimer of interest 44 insurance principle 40
priority 45 interest
rectification 50–1 oppressive rates of 182, 193–5
freehold land 3, 6–7 statute-barred 187
first registration 42 intestacy
frustration adverse possession 227, 229
leases 209 tenancy in common 105
investment properties 61, 68
gazumping 24, 27
gazundering 24 joint tenancy
four unities 104–5, 204
hereditaments, incorporeal and homicide 108, 116
corporeal 4 key cases checklist 109–10,
homicide 111–16
joint tenancy: severance by 108, leasehold estate 204
116 legal estate 104–5
Housing Act 1985 41, 61, 206 overview 103
human rights 230–1, 237–8 right of survivorship 104
severance of equitable estate
implied licence, doctrine of 226 104, 106–8, 111–16
implied trusts 37, 59–60, 75 tenancy in common or 105–6,
constructive trusts see separate 110–11
entry trusts of land 118
formalities 29, 59
resulting trusts see separate entry land
trusts of land 118 definition of 2–3, 12–13, 13–14
Index 245
estates in land after 1925 7 restrictions 43, 51

estates in land before 1925 6 summary of changes 51
fixtures 8–9, 17–22 trigger events for registration

ground below surface 2–3, 13 41
items found in or on 9, 12–17 Land Registry
key cases checklist 10–22 access orders 137
legal and equitable rights 4–5 adverse possession 227,
notice, doctrine of 5 229–30
overview 1 alteration of register 40,
real and personal property 3–4 49–51
significance of 2 burdens on register 41, 42–5,
treasure 10 47, 51, 57, 142, 180, 189
Land Charges Act 1972 32–3 charges register 40, 52, 142–3,
Land Charges Registry 164, 173, 180
failure to register 32, 36–7, 144, classification of interests 41–2
164 co-ownership declaration 76–7
name of owner 32, 36 covenants 40, 52, 163–4,
unregistered land 32–7, 144, 173–4
163–4, 173, 180 curtain principle 40
land obligation 166 easements 136, 142–3
Land Registration Act 1925 equitable interests 5, 25, 52
40, 52 exchange of contracts 25
adverse possession 231, 237 failure to register 26, 42–3, 164,
inhibitions and restrictions 43 181, 189
minor interests 42 first 24, 26, 32, 35, 41–2, 143,
overriding interests 45, 47, 49, 180, 189, 197
53 indemnity 40, 50–1
Land Registration Act 2002 insurance principle 40
adverse possession 51, 227, key cases checklist 52–7
228–31, 237 leases 41, 43, 51, 206–8
aim of 35 matrimonial home 37–8, 47,
alteration of register and 52–6
indemnity 49–50 minor interests 41–5, 47,
covenants 163 51, 57, 142, 180, 189
equitable easements 49, mirror principle 40
142–3 mortgages 180–1, 189
leasehold estate 51, 207 name incorrect 36
legal easements 142, 143 overriding interests 37–8, 44–9,
mortgages 180 51, 53, 54–8, 82,
notices 43, 51 142–3
overriding interests 45–9, overview 40
51, 53, 136, 142 profits à prendre 145
proprietary estoppel 82 property register 40, 142
246 Index
proprietary estoppel 82 contracts 25–6, 27–8, 29–30,

proprietorship register 40 68–9, 81, 95, 141, 181
public access 40 deeds 5, 207

registered conveyancing 26 equitable easements 141
time limits 26, 42, 180, 207 leases 7
voluntary registration 41 adverse possession 225, 230,
Landlord and Tenant Act 1954 237
206 assignment 205, 207, 214–15
Landlord and Tenant Act 1985 authorised guarantee agreement
206, 211, 220 (AGA) 215
Landlord and Tenant (Covenants) break clause 209
Act 1995 214–15 characteristics 203–5,
Lands Tribunal 165 216–23
Law Commission covenants 43, 206, 210–15, 220,
cohabitation 65, 73 223
covenants 166–7 creation of 207–8
easements 140 determinate period 7, 204–5,
overriding interests 45 218–19
Law of Property Act (LPA) distinguished from licences
1925 54 205–6, 217–18, 220–3
co-ownership 104–7, duration 7, 204–5, 218–19
111–14 enforcement of covenants
court applications 121 213–15
covenants 159, 161–3, exclusive possession 203, 217,
165, 175 221–3
creation of express trust of forfeiture 208–9, 212, 214, 223
land 59 frustration 209
deeds 4–5, 26, 136, 141 joint tenancy 204
easements 136, 138–9, 141, 143, key cases checklist 216–23
152–3 licence and grant of 204, 217
equitable interests 4–5 merger 209
implied trusts 59 minors 207
leases 3, 7, 203–4, 207–9, 214, mortgagors 184
219–20 notice to quit 208
legal estates in land 3, 7, 203 oral contracts 25, 207
legal interests 4, 8 overriding interests 45,
mortgagees 187 206, 208
mortgagors 188 overview 202
overreaching 35, 120, 132 periodic tenancy 204–5,
profits à prendre 144–5 207–8
trusts of land 59, 118 proprietary rights 3
Law of Property (Miscellaneous registration 41, 43, 51,
Provisions) Act 1989 206–8
Index 247
regulation of 219–21 manorial rights 46–7

rent 205, 208–10, 212, matrimonial home
218, 220 bankruptcy 122, 129–30

rent review clause 205 co-ownership 110–17
repudiation 209 Family Law Act 1996 47,
surrender 209, 230, 236 52–3
tenant’s fixtures 9, 21–2 Matrimonial Causes Act 1973
termination of 208–9 73
Legal Aid, Sentencing and Matrimonial Homes Acts 1967
Punishment of Offenders and 1983 52–3
Act 2012 227 overriding interests 38, 53,
legal and equitable rights 4–5 54–6
legal estates in land 3–4, 6–7 rent from co-tenant 128
legal interests 4, 6–8 resulting or constructive trust
licences 15, 136, 147, 172 61, 69, 75
adverse possession 225, 236 unregistered land 37–8
bare 3, 47, 94 see also constructive trusts
contractual 47, 94–5, maxims of equity
98–102 clean hands 83
coupled with grant 94, 97–8 delay 83
distinguished from leases 205–6, equality is equity 76
218, 221–2 equity follows the law 64, 76–7,
easements under s 62 LPA 1925 106, 110
138, 152 minor interests 41–4, 51, 57, 142,
estoppel 95, 99 180, 189
implied licence, doctrine of overriding interests 47
226 priority 43–5
key cases checklist 96–3 minors
lease granted from 204, 217 actual occupation 48, 56
nature of 93–4, 96 adverse possession 233–4
nuisance 12 equitable estate in land 118,
overriding interests 47 207
overview 93 leases 207
life estates 5, 6 legal estate in land 118, 207
light, right to 134, 140 presumption of advancement
Limitation Act 1980 49, 187, 226, 60
228 trustee in bankruptcy 122,
liquidation 129–30
disclaimer of lease 209 trusts of land 118, 121–2,
local land charges 128–9
overriding interests 46 mirror principle 40
lock-out agreements 24–5, 27 misconduct
lodgers 203 proprietary estoppel 83, 92
248 Index
mistakes necessity
adverse possession: boundaries easements 137, 141, 155
229, 230 profits à prendre 145

alteration of register 40, negligence 185, 187
49–1 negotiations
mortgagees 35, 179 severance of joint tenancy 108,
rights of 186–8, 191, 197–201 114–15
sale proceeds inadequate 199 notice 5, 32–3, 37
tenants in common in equity: actual 5, 32, 35, 37–8, 164, 185,
joint 106 189
trusts of land 121 constructive 5, 35, 185, 189
mortgages 190–1 imputed 5
creation of 179–81 overreaching 35
definition 178–9 notice on register 42–5, 51, 180,
development of 179 208
equitable 181, 188–9 nuisance 12–13, 210
‘equitable right to redeem’ 179,
181–2, 191–4 occupiers
foreclosure 188 chattels 14–15
key cases checklist 190–202 options 25, 28, 36–7, 47
legal 4, 8, 41, 179–80, 188 overreaching 35, 43, 47, 53–4,
mortgagees see separate entry 120–1, 138
overview 178 overriding interests 44–9, 136
priority of 188–9 actual occupation 38, 45–9,
protection for borrower/ 53–7, 82
mortgagor 179, 181–4, 188, adverse possession 46, 51,
190–4 230
puisne 33, 180 definition 45
registered land 51, 180, 189 effective date of 49
undue influence 184–5, equitable easements not 46, 49,
195–7 51, 142–3
unregistered land 180, 188–9 on first registration 45–8, 51,
mortgagor, protection for 190 143
court application for sale 188, leases 45, 206, 208
198–9 legal easements 45–6, 49, 142,
‘equitable right to redeem’ 179, 143
181–2, 190–3 LRA 2002 45–9, 51, 142
extortionate credit agreements profits à prendre 145
182–3 proprietary estoppel 82
leases 184 rectification 51
oppressive interest rates 182 on second or later registrations
unfair collateral advantages 45–6, 48–9, 51, 143
183 time limits 46–7
Index 249
parking nature of rights arising

adverse possession 226 under 82
right to park 135, 149–50 no written agreement 25–6,

periodic tenancy 204–5, 28–30
207–8 overview 79
personal and real property 3–4 reliance 81–2, 89–91
personal representatives remedies 83, 90–2,
overreaching 120 95, 99
personal rights 3, 44, 52–3 representation 80–1,
licences 3, 95, 99–100 85–8, 91
planning permission 165 proprietary rights 3
possessory freehold title 42 proprietorship register 40
post Protection from Eviction Act 1977
joint tenancy: severance by 206, 210
107, 112–14 public auctions 25
pre-contractual enquiries public rights
24–5, 27 overriding interests 46
prescription puisne mortgages 33, 180
easements 139–42, 154–5
profits à prendre 144 qualified freehold title 42
Prescription Act 1832 139–40, quasi-easements 138, 151
145
priority re-entry rights
minor interests/burdens on court order 209, 212
register 43–5 rentcharge 8
mortgages 188–9 real and personal property 3–4
privity of contract 158, 213–14 receivers
privity of estate 213–14 mortgages 187, 201
profits à prendre 4, 94, 144–5 rectification 40, 50–1
overview 133 registered land 38
unregistered land 33 adverse possession 225,
property register 40, 142 228–30, 236
proprietary estoppel 172 covenants 164
adverse possession 228 easements 142–3
bona fide purchaser for value legal profit à prendre 145
without notice 33 mortgages 51, 180, 189
commercial transactions see also conveyancing; Land
25–6, 29 Registry
definition 79–80, 85–6 registration
detriment 81–2, 88, 89–90 Land Charges Registry see
easements 136, 144 separate entry
key cases checklist 84–92 Land Registry see separate
licences 95, 100 entry
250 Index
unregistered land 24, 26, 32–7, silence

41–2, 144, 163–4, 173, 180, proprietary estoppel 81
188 solicitors 185

Registration of Title Order 1989 26 specific performance 25, 95, 99,
remedies 212, 223
breach of covenant 165–6, spouses
176–7, 212, 223 presumption of advancement
damages 24, 27, 165–6, 177, 212 60
injunctions see separate entry undue influence 184–5,
proprietary estoppel 83, 90, 92, 196–7
95, 99 squatters see adverse possession
specific performance 25, 95, 99, subject to contract 24
212, 223 Suicide Act 1961 116
rent 205, 208–10, 212, 218,
220 television reception 12, 134
co-tenant: occupation 121, tenancy in common 104–5
128–9 joint tenancy or 105–6,
Rent Act 1977 206 110–11
rentcharges 4, 8 key cases checklist 109–16
repairs overview 103
access to neighbouring land 3, severance of equitable estate
11–12, 137 104, 106–8, 111–16
repudiation trusts of land 118
leases 209 tenant’s fixtures 9, 21–2
restriction on register 42–5, 51 term of years absolute 7, 41
restrictive covenants see covenants time limits
resulting trusts 62–3 adverse possession 227–30
definition 60, 67 easements 139–140
formalities in s 2 LP(MP)A 1989 eviction 206
29 leasehold 25, 41, 45, 51,
illegal motive 61, 68–9 206–8, 215
key cases checklist 66–72, mortgages 180, 186–7
74, 76 overriding interests 46–7
operation of 60–1, 67–9, 71–2, profits à prendre 144–5
74, 76 registration 26, 42, 180,
trusts of land 118 207
right to buy title deeds
first registration 42 mortgages 180–1, 188
resulting trusts 61 unregistered title 26, 32
rights of way 36–7, 86, 135, 155 transfer and creation of rights in
land
self-help 212, 227 aims of 1925 legislation 32
set-off 212 conveyancing see separate entry
Index 251
exceptions to requirements of s 2 undue influence

LP(M)A 1989 25–9 mortgage transaction 184–5,
key cases checklist 27–30, 36–8 195–7

treasure 10 unjust enrichment 65
trespass 10–2, 223 unregistered conveyancing 24, 26
licences 93–4 equitable rights 5, 32, 33, 35
proprietary estoppel 81 key cases checklist 36–8
trust corporation 120 notice 5, 32, 35, 37, 38
Trustee Acts 1925 and 2000 59 overreaching 35
trustee in bankruptcy 122, 129–31 overview 31
trustees 35, 47, 53–4, 59 principles of 32–3, 36–8
trusts of land 118–21, 131 registration 24, 27, 32, 33–5,
trusts 40 36–7, 41, 42, 144, 163, 164,
bare 42, 230 173, 180, 189
beneficiaries 4, 59 unregistered land
definition 58–9 adverse possession 225, 227–9,
express 59, 118 236–7
implied see separate entry bona fide purchaser for value
trusts of land without notice 32–3, 37–8
beneficiaries 119–21, 124, 128, covenants 33, 37, 164
131 easements 142–4, 144
changes made under TOLATA equitable rights 5, 33–5
1996 118 Land Charges Registry 32–4,
characteristics 118 36–7, 144, 163–4, 173,
court applications under 180
TOLATA 1996 121–2, mortgages 188–9
126–7 utilities 136
key cases checklist 123–32
number of trustees 118 view 134
occupation rent 121, 128–9 violence
overreaching 35, 43, 47, 53–4, rent from co-tenant 121, 128–9
120–1, 132
overview 117 waivers
powers of trustees 118–19 leases 209, 212
purpose of trust 121, 124–5 Wheeldon v Burrows, rule in
trustee in bankruptcy 122, easements 137–8, 151–2
129–31 wills
trustees 118–21, 132 adverse possession 227–9
Trusts of Land and Appointment joint tenancy 104, 107
of Trustees Act 1996 proprietary estoppel 81, 87–8,
(TOLATA) 118–22, 90–1
126–8 tenancy in common 105

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KEY FACTS KEY CASES

Titles in the series:

For a full listing of the Routledge Revision range of titles, visit

KEY FACTS KEY CASES

ISBN: 978–0–415–83333–2 (pbk)

3.3 Equitable rights in unregistered land 33

3.5 Move towards registration of all titles 35

7.5 Estoppel licences 95

11.6 Remedies for breach of a restrictive covenant 165

11.8 Commonhold 167

Key Facts – These are the basic facts of the case.

Key Law – This is the major principle of law in the case.

Key Judgment – This is an actual extract from a judgment made on

Key Comment – Inﬂuential or appropriate comments made on the

Key Problem – Apparent inconsistencies or difﬁculties in the

Key Link – This indicates other cases which should be considered

CC County Court CCA Court of Criminal Appeal

CCR Crown Cases Reserved CH Court of Chancery

ChDiv Chancery Division CJEU Court of Justice of the

C-MAC Court Martial Appeal Court CP Court of Probate

DC Divisional Court EAT Employment Appeal Tribunal

ECHR European Court of Human ECJ European Court of Justice

ET/IT Employment tribunal/ Exch Court of the Exchequer

HC High Court HL House of Lords

KBD King’s Bench Division NIRC National Industrial Relations

PC Privy Council QBD Queen’s Bench Division

RC Rolls Court SC Supreme Court

The law is as I believe it to be on 1 August 2013

88 Berkeley Road, NW9, Re, Rickwood v Turnsek [1971]

A-G Securities v Vaughan [1990] 1 AC 417.............................204, 216, 223

BP Properties v Buckler (1987) 55 P & CR 337 ...................225, 232, 235–6

Berrisford v Mexﬁeld Housing Co-operative [2011]

Biggs v Hoddinott [1898] 2 Ch 307 ..............................................181, 190–1

CPS v Piper [2011] EWHC 3570 (Admin) .................................................64

Cowcher v Cowcher [1972] 1 All ER 943, [1972]

Crabb v Arun District Council [1976]

Davis v Smith [2011] EWCA Civ 1603 ........................................108–9, 116

ER Ives Investment Ltd v High [1967]

Facchini v Bryson [1952] TLR 1386 .........................................................203

Fairclough v Swan Brewery Co [1912] AC 565 ........................182, 190, 193

[1980] 1 WLR 594 .......................................................162, 168, 174, 176

Gafford v Graham (1998) 95(21) LSG 36 .................................................166

Halsall v Brizell [1957] Ch 169 .................................157, 160, 167–8, 171–2

Horsham Properties v Clarke and Beech [2009]

Hounslow LBC v Twickenham Garden Development

International Tea Stores v Hobbs [1903]

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419,

K (Deceased), Re [1985] Ch 85.....................................................108–9, 116

Kelsen v Imperial Tobacco [1957] 2 QB 334...........................................2, 10

1 WLR 423, Ch D ........................................................105, 107, 109, 112

Lace v Chandler [1944] KB 368 ......................................7, 204, 216, 218–19

M’Dowell v Ulster Bank Ltd (1899) 13 ILT 96,

Mew v Tristmire [2011] EWCA Civ 912, [2012]

Nash v Paragon Finance [2001] EWCA Civ 1466, [2002]

Oak Co-operative Building Society v Blackburn [1968]

Oxley v Hiscock [2004] EWCA Civ 546, [2005]

P & A Swift Investments v Combined English Stores

Quick v Taff Ely BC [1986] QB 809 ..........................................................211

Rainbow Estates Ltd v Tokenhold [1999] Ch 64, [1998]

Russel v Russel (1783) 1 Bro CC 269, 28 ER 1121 ...................................181

Sainsbury (J) Plc v Enﬁeld LBC [1989] 1 WLR 590 .................................163

TSB Bank plc v Botham [1996] EGCS 149 ............................................9, 21