SECOND UPDATE TO THE SIXTH EDITION OF LAND LAW by DIANE CHAPPELLE.
Hello again, everyone. I trust you all had a good Christmas break and return fully refreshed to your studies. Taking the same order as in the book again, here are the recent cases – from which you will note the increase in reliance upon the Human Rights Act and the European Convention on Human Rights.
The rule against perpetuities
With regard to the presumption of age and childbearing, it was reported in The Week, 22 January 2005, that ‘a retired 66-year-old Romanian academic has become the world’s oldest mother after giving birth to a baby daughter.’ The baby was the only survivor of triplets the mother was carrying following in vitro fertilisation.
Purbrick v Hackney London Borough  1 P&CR 34 required Neuberger J to consider whether, during the relevant period, Purbrick, a builder, had shown an intention to possess ‘a burnt out shell’ of a building which stood in the corner of a larger site owned by Hackney. The site had been the subject of a fire and all other buildings had been demolished and a car park created. The remaining building had no door and no roof and was full of dumped rubbish. In 1988, Purbrick cleared the rubbish and began to store ladders and other equipment in the building. He secured a piece of corrugated iron with a chain and two padlocks across the doorway, but decided not to erect a roof or carry out any other work in case the owner (or anyone else) saw him and tried to stop him using the building. However, in 1992 he installed a proper door and restored the first floor, after which he remained in occupation. At a hearing before the Deputy Solicitor to the Land Registry in 2002, it was held that Purbrick could not rely upon his occupation between 1988 and 1992 as his intention to possess was not apparent and his acts in relation to the building were open to more than one interpretation. Thus he had not made out a case for adverse possession. However, Neuberger J allowed Purbrick’s appeal, holding (at p559) that the natural inference to be drawn from his occupation between 1988 and 1992 was that he intended to possess the building, for ‘… if he was not in possession, who was? To say that the Council was in possession of the building, when someone else had installed his equipment, had locked it so that nobody could obtain access, other than by putting a ladder up against the wall and climbing over the top of a 4 metre wall, appears to me … to flout common sense and reality. … the simple contention that the fact that the squatter could have done more on the land should defeat his claim for adverse possession, would fall foul of the reasoning of Slade J in Powell [v cFarlane  38 P&CR 452]and of Lord Wilkinson in Pye [v Graham  1 AC 419]. … the question is not what the squatter could have done, but what he did, and whether he did sufficient to amount to physical possession’. In addition, the fact that Purbrick knew that he was liable to be dispossessed as a right did not prevent him being in possession. Therefore, Purbrick could count on the first four years of his occupation and thereby acquired the title by adverse possession. As the judge says, ‘… it is to some extent implicit in the present law of adverse possession, that an owner of property who makes no use of it, whatever, should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years is a long period during which to neglect a property completely’ – at p560. So too is 10 years (LRA 2002)!
In Beale v Harvey  2 P&CR 18, Countrywide Properties Ltd, the builders, intending to erect a retaining wall and fence along the boundary between plots 1 and 2, as indicated on the site and transfer plans, actually erected them along a different line by mistake. The Court of Appeal held that the description and red edging of the boundary shown on the plans was the ‘dominant description’; the wall and fence could not be taken as the true boundary. Given that, as the detriment suffered by Harvey (who had planted some 50 plants in the border alongside the fence) had only lasted a matter of months, it was too insubstantial to make it unconscionable for Countrywide to seek to rectify its mistake at its own expense.
Uglow v Uglow  EWCA Civ 987 concerns the principles laid down in Gillett v Holt  Ch 210. In Uglow, two branches of the family, ‘now deeply divided by a ruinous inheritance dispute’ about one of several farms worked by the family, sought judgment on a claim for proprietary estoppel based on ‘an oral assurance of inheritance given almost 30 years before and a later will which failed to give effect to it’ – Mummery LJ. The will in question was made by Mr Percy John Uglow, known as ‘Uncle Percy’ to the family. He died on 5 July 2001 and in his will he left ‘Treludick, a freehold farm of about 235 acres of agricultural land, a beautiful Elizabethan farmhouse and some cottages and other buildings, valued for probate at £775,000, to his great-nephew, Mr Peter Gerald Uglow (Peter). However, the will also provided that Uncle Percy’s unmarried younger sister, Marion, should be permitted to continue to occupy the farmhouse, in which she and Uncle Percy had lived for many years, for as long as she wished. This gift to Peter was challenged by Uncle Percy’s nephew, Mr Richard John Uglow (Richard), who claimed that his uncle had assured him in 1976 that Tredulick would be left to him in the will. In fact, all he received under the will was £1,000 and a quarter share in the residuary estate. Richard based his claim on this oral assurance and his detrimental reliance upon it, in that he had satisfied Uncle Percy’s condition of such a legacywhich was that Richard leave his own family farming partnership and join in a new one with Uncle Percy at Treludick. Having thus kept his side of the arrangement, he argued, Uncle Percy was bound in equity to keep his. It emerged, however, that this partnership had not worked out and that, on the dissolution of it, Uncle Percy had treated Richard fairly by giving him a tenancy of the major part of the land and thereafter not insisting on rent.
Mummery LJ concluded that Uncle Percy’s assurance was not irrevocable, whatever happened, ‘The scope of the court’s inquiry is not limited to what it would be unconscionable for [Uncle Percy] to have done in 1976, but should take account of subsequent events affecting the conscience of [Uncle Percy, who] … was not committing himself to leaving Treludick to Richard come what may.’ Equity had been satisfied by the arrangements made by Uncle Percy in favour of Richard upon the termination of the partnership, following which he farmed all but about 60 acres of Treludick ‘on his own account and in circumstances in which he became entitled to the security of a protected tenancy transmissible on his death. … The court should not use the flexible principles of proprietary estoppel to secure greater benefits for Richard that he had already derived from [Uncle Percy] in his lifetime …’
TRUSTS OF LAND
Bathurst v Scarborow  1 P&CR 58 provides a rare example of a rebuttal of the presumption of a tenancy in common of land owned by a business partnership. The Court of Appeal had to consider whether the property in question was partnership property and, if so, whether ‘the partners had wished to take the beneficial interest in a joint tenancy and that in doing so they knew the effect of the rule of survivorship’ – Rix LJ at p73. On the facts, both questions were answered in the affirmative. The consequence of this was, of course, that the right of survivorship operated upon the death of one of the partners.
Pritchard Engelfield v Steinberg 1 P&CR DG2 is a good example of the nature of land law – the battle between competing rights. Here, Pritchard Engelfield (PE) was claiming possession of a house in London, and Mrs Steinberg (Mrs S), the Defendant, Jonathan’s, mother, who lived in the house, claimed that she had a lease or a licence under which she could live rent free in the house for life, or, alternatively, that her son held the property on constructive trust to allow her to occupy rent free for life. In the latter case, Mrs S claimed that her interest was an overriding interest which was binding on PE. On the facts, there was no lease and ‘a mere licence would not be sufficient to bind a third party’ – Peter Smith J., but the claim to a constructive trust was upheld, which would give Mrs S an overriding interest which would, on the facts, have been binding on PE. However, on the facts, Peter Smith J held that the most equitable outcome to all concerned would be achieved by ordering sale of the house, and the ‘priorities for payment from the net proceeds of sale would be as follows: the Bank (mortgagee), Mrs Steinberg’s life interest (to be valued actuarially and capitalised accordingly), [PE’s] costs and charges and the service charge arrears. Any remaining amount would be payable to Jonathan Steinberg who was also liable to pay the costs of the present proceedings.’
Oxley v Hiscock  3 WLR 715 concerned a claim to a beneficial share in a house, but where no express declaration of trust had been made. The Court of Appeal stated per curiam that ‘Once it is recognised that what the court is doing is to supply or impute a common intention as to the parties’ respective shares (in circumstances in which there was, in fact, no common intention) on the basis of which, in the light of all the material circumstances (including the acts and conduct of the parties after the acquisition), is shown to be fair, it seems very difficult to avoid the conclusion that an analysis in terms of proprietary estoppel will, necessarily, lead to the same result; and that it may be more satisfactory to accept that there is no difference between constructive trust and proprietary estoppel’ - Chadwick LJ at para 66. Chadwick LJ’s judgment should be read in full.
Barca v Mears  EWHC 2170 concerned s335A of the Insolvency Act 1986 and Articles 1 and 8 of the European Convention on Human Rights. Mr Barca owed some £135,595 to his creditors, £52,342.19 of this to Halifax plc. His house was valued at £140,000. Mr Barca’s son, Lorenzo (who lived with him from Thursdays to Mondays), had special education needs which, argued Mr Barca, would be severely affected if an order for the sale of his house were ordered. Under s335A(3), ‘the court shall assume, unless the circumstances in the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations.’ Mr Barca claimed that the consequences for his son of a sale would connstitute ‘exceptional circumstances’. Following Re Citro  Ch 142, Mr Strauss QC held that, Lorenzo’s problem not being extreme and that fact that a sale of the house would not result in Lorenzo having to change school, sale would be ordered. The next point to be addressed was whether such an order and sale would be a breach of Article 8 or 1. In response to this, Mr Strauss stated, obiter, that ‘it does seem to me to be questionable whether the narrow approach as to what may be “exceptional circumstances” adopted in re Citro, is consistent with the Convention. … It seems to me that a shift in emphasis in the interpretation of the statute may be necessary to achieve compatibility with the Convention.’ However, on the facts, he held that the creditors’ interests musts prevail and the house sold.
Another case concerning Article 8 (and/or Article 1 of the First Protocol) in conjunction with Article 14 – prohibition against discrimination - is National Westminster Bank plc v Malhan  EWHC 847(Ch), this time in relation to the overreaching provision in s2(1) of the Law of Property Act 1925. The argument was that s2(1) is discriminatory, on the basis that one trustee cannot effect overreaching, but more than one can (issue has been taken with this previously by both the Law Commission – see Report 188 – and Peter Gibson LJ – see State Bank of India v Sood  Ch 276 at 290). On the facts, Sir Andrew Morritt VC held that the point did not arise, as the Human Rights Act 1998, not having retrospective effect, did not apply. However, it is an interesting argument and may well be raised again in a future case.
Ghaidan v Godin-Mendoza  3 WLR 113 is another case involving the ECHR, this one based on Articles 8 and 14. Article 14 covers discrimination of all kinds, the claim here being the less favourable treatment of homosexuals under the Rent Act 1977. In the earlier case of Fitzpatrick v Sterling Housing Association Ltd  Ch 304 , the House of Lords held that para 2(2) of Schedule 1 of the 1977 Act, which treated a spouse – a person living with the original tenant ‘as his or her wife or husband’ – did not include homosexual couples. However, in that case the original tenant had died before the coming into effect of the Human Rights Act 1998. In Ghaidan the death of the tenant occurred after the 1998 Act and the question was whether Fitzpatrick still applied. The House of Lords held by a majority that it was possible, without contradicting any cardinal principle of the 1977 Act, to read paragraph 2(2) as extending to same-sex partners and, thereby, eliminate its discriminatory effect. The defendant was, therefore, entitled to succeed to the statutory tenancy.
Another case concerning Article 8 is Harrow LBC v Qazi  1 P&CR 19, which raised the question whether the Council’s termination of a tenancy infringed Article 8, as held by the Court of Appeal. The House of Lords declared that the object of Article 8 is ‘to protect the individual against arbitrary interference by public authorities with his right to privacy, and is concerned with his home as an aspect of that’ and that “home”, for the purposes of Article 8, depends upon the factual circumstances; ‘It is not concerned, as such, with the protection of his right to own or to occupy property. Save in wholly exceptional circumstances, the requirements of Art 8(2) are met where the domestic law affords an unqualified right to possession on proof that the tenancy has been terminated.’ As Qazi’s right to occupy the premises as his home arose from the tenancy, and as the tenancy had come to an end lawfully, the Council’s unqualified right to possession was not in breach of Art 8.
In PW & Co v Milton Gate Investments Ltd  Ch 142, Neuberger J stated per curiam that, in light of section 3 of the Human Rights Act 1998, sections 141 and 142 of the Law of Property Act 1925 could be construed in such a way as to enable covenants in a subtenancy to be enforceable as between a head landlord and subtenant in the event of the head tenancy being determined by break notice.
The Court of Appeal held in West Bromwich Building Society v
Wilkinson  The Times, October 5, that a mortgagee’s right to sue the mortgagor on his covenant to repay arises on the first default in payment of instalments, and confirmed that the limitation period for commencement of an action to recover a shortfall on sale of the repossessed property was 12 years.
The Court of Appeal held in Yorkshire Bank plc v Tinsley  1 WLR 2386 that, where two mortgages are inseparably connected and the first is voidable for undue influence, the second mortgage is also voidable. On the facts, the order of possession granted to the mortgagee was discharged.
P & s Platt Ltd v Crouch  1 P&CR 242 could well set the cat among the pigeons in that the Court of Appeal held that the benefit of an easement could pass under s62 of the Law of Property Act 1925 – even though there was unity of seisin, i.e. no diversity of ownership or occupation, immediately prior to the conveyance. Per Peter Gibson LJ, ‘… the rights in question did appertain to and were reputed to appertain to and were enjoyed with [the land in question] … The rights were continuous and apparent, and so it matters not that prior to the sale of the hotel there was no prior diversity of occupation of the dominant and servient tenancies. Accordingly, … s62 operated to convert the rights into full easements …’ This reopens the debate surrounding Sovmots Investments Ltd v Secretary of State for the Environment  AC 144, where Lord Wilberforce confirmed (obiter) that it is impossible to have an easement against one’s own land (which is enjoyed as of right). If this is so, how can an easement pass by conveyance where the vendor owns both plots of land? Should not the easement here pass as a quasi-easement under the Rule in Wheeldon v Burrows? As MacKenzie and Phillips say (Textbook on Land Law, 10th edition, page 524, Oxford) it would be so much easier if what was passed with the conveyance under s62 was ‘the thing (usually a licence) that actually exists’. In the meantime, Platt v Crouch may well lead to some lively debate.
In the first update to this edition, the House of Lords decision in Blackwell v Brandwood  UKHL 14 was noted. As in Blackwell, Hayling v Harper  1 P&CR 563 concerned the effect of illegality on a claim to an easement. On the facts, the claim to an easement by prescription based on 20 or more years user before action failed as the user amounted to an offence under the Road Traffic Act 1988. However, the alternative claim under lost modern grant, owing to 20 or more years user before the action was begun – and before the action became illegal – was upheld.
Dano Ltd v Earl Cadogan 2 P&CR 10 and  1 P&CR 169. From the first decision it appeared that the passage of time might affect the exact meaning of a covenant ; on the facts, the covenant restricted the use of the premises to ‘housing of the working classes’. The court accepted that today the phrase ‘working classes’ means those who, due to low income, require inexpensive accommodation. (This is particularly interesting given the phenomenal rise in house prices and the inability of persons on what would previously have been considered ‘good’ incomes – e.g. teachers – to be able to afford accommodation in certain areas, especially London. Dano is not the first case to raise the question of the meaning of ‘the working classes’ .)
The second decision concerned a different issue, and the Court of Appeal held that where ‘the benefit of a covenant is annexed to land described by reference to a named ‘estate’ it will be a matter of construction of the particular covenant whether it continues to apply to land originally within it once the named estate has ceased to exist in any recognisable form.’ – Carnwath LJ at page 174. On the facts, the original intention (as gleaned from the document as a whole) was that the covenant would last only so long as the dominant land remained settled land. As this was no longer the case, the covenant was no longer enforceable.
Well, that’s it. No doubt you are all inundated with courseworks, so I hope the above comes in useful. Be sure to update yourselves beyond this for your forthcoming May/June exams, with which I wish you all the very best of luck.