Land Law Cases: points of law only

* Pennistone Holdings Ltd v Rock Ferry Waterfront Trust [2021] EWCA Civ 1029 POINT OF LAW

Escheat is where, because all land in England is held of the crown and no land can be without an owner, when the granted interest in land comes to an end, the land reverts to the crown. When there is a dissolution of a company not governed by teh Comapnies act 2006, there will be an escheat of its real property in England. However, although an escheat terminates an existing freehold interest, it does not terminate derivative interests, such as leases or mortgages.

*Appleby v UK [2003] 37 EHRR 38 POINT OF LAW

Property rights and other human rights have to be balanced. One has a right to exclude people from one's property even if it might seem like it's violating other human rights, such as freedom of expression.

*R (Day) v Shropshire Council [2023] UKSC 8 POINT OF LAW

Public land can be under a statutory trust, but that is not similar to a private trust. This continues even if it is sold.

Manchester Ship Canal Co Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22 POINT OF LAW

An individual's right to the peaceful enjoyment of their property is a fundamental right which, like all rights, cannot be overruled by general or ambiguous words, or by necessary implication. There must be clear language. Parliament will not be taken to have intended that powers should be exercised, or duties performed, in a way which causes an interference with private rights where such an interference could have been avoided.

*Keppell v Bailey (1834) 2 My & K 517 POINT OF LAW

Covenants do not run with the land so as to bind new owners. You cannot create new modes of holding and enjoying real property (new real property rights).

*Hill v Tupper (1863) 2 H & C 121 POINT OF LAW

A new species of real property right cannot be created at the will and pleasure of the owner of property. An easement must confer a benefit directly tied to the use and enjoyment of the dominant land, rather than granting a mere commercial advantage to its owner.

*National Provincial Bank Ltd v Ainsworth [1965] AC 1175 FACTS

Mr and Mrs Ainsworth liven in a house together. Mr A was the registered owner. He moved out, leaving his wife still in residence. He took out a loan from C and secured his house against it. He failed in his repayments, and the bank wanted to repossess the house. The question was whether Mrs Ainsworth's 'deserted wife's equity' was a binding property right.

*National Provincial Bank Ltd v Ainsworth [1965] AC 1175 POINT OF LAW

Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. A wife is not a licensee; she remains in the matrimonial home by virtue of her status as a wife. Equitable rights are purely personal so are not binding on third parties.

*Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35 POINT OF LAW

It is a breach of one's A1P1 rights not just to prevent people from selling their property de jure, but to prevent it de facto through unduly long restrictions, such as expropriation permits. There must be a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. Court analysed Article 1 as comprising 3 distinct rules:

The first is of a general nature and enunciates the principle of the peaceful enjoyment of property.

The second covers deprivation of possessions and subjects it to certain conditions.

Third rule recognises that States are entitled to control the use of property in accordance with the general interest.

*James v UK (1986) 8 EHRR 123 POINT OF LAW

A deprivation of property effected for no reason other than to confer a private benefit on a private party cannon be 'in the public interest'. Nonetheless, the compulsory transfer of property from one individual to another may sometimes constitute a legitimate means for promoting the public interest. A taking of property in pursuance of legitimate social, economic, or other policies may be in the public interest, even if the community at large has no direct use or enjoyment of the property taken.

J A Pye (Oxford) Ltd v UK (2006) 43 EHRR 3; *Reversed by Grand Chamber, J A Pye (Oxford) Ltd v UK (2008) 46 EHRR 45 POINT OF LAW

A fair balance is required by A1P1 between between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. This was not upset in the case of adverse possession.

*R (on the application of Mott) v Environment Agency [2018] 1 WLR 1022 POINT OF LAW

The special importance to be attached to environmental protection does not detract from the need to draw a "fair balance", nor the potential relevance of compensation. For that, it was still necessary to consider the impact on the particular claimant.

Birmingham CC v Lloyd [2012] EWCA Civ 969 POINT OF LAW

Without a contractual right to occupy a dwelling, a claimant may succeed on art 8 ECHR, but only in the most extraordinarily exceptional circumstances. This includes trespassers.

*Walsh v Lonsdale (1882) 21 Ch D 9 POINT OF LAW

An agreement for a lease, in equity, grants the tenant the same protections as if the lease had been granted. However, that also grants the landlord powers, for example for a distress.

*Scott v Southern Pacific Mortgages Ltd [2015] AC 385 POINT OF LAW

You can't get a proprietary right through equity based on promises without ownership.

City Permanent BS v Miller [1952] Ch 840 POINT OF LAW

A grant necessarily implies the acquisition of a legal property right: if B has an equitable lease, B has not been granted a lease by A. Rather, A is instead under a duty to make such a grant. "Granted" clearly imports the actual creation of a term of years.

*Peffer v Rigg [1977] 1 WLR 285 POINT OF LAW

The defence of lack of registration only applies if the purchase is made in good faith.

*Lyus v Prowsa Developments [1982] 1 WLR 1044 POINT OF LAW

If D accepts land and by that action reneges on an agreement in favour of P, then that land is held on a constructive trust for P. The conscience of the defendant must be affected.

Chaudhary v Yavuz [2013] Ch 249 POINT OF LAW

Where rights are registrable, the doctrine in Lyus v Prowsa about constructive trusts will not apply. The court will defer to what is in fact on the register. To say that the enjoyment of an easement can amount to "actual occupation" is to confuse "actual occupation" with "actual" use. A purchaser is not automatically subject to a constructive trust simply because the vendor stipulates that the sale is subject to existing rights or incumbrances. For a constructive trust to arise, the court must be satisfied that the purchaser's conscience is affected, making it inequitable for them to deny the claimant's interest. This is determined by whether the purchaser has undertaken a new obligation to give effect to the incumbrance or interest.

*Williams and Glyn's Bank v Boland [1981] AC 487 POINT OF LAW

'Actual Occupation' should be given its ordinary meaning, and may be characterised by physical presence. There are three mutually exclusive kinds of interest under the Land Registration Act 1925: legal estates, minor interests (which take effect in equity), and overriding interests. Actual occupation may protect rights if the person in occupation has rights. The rights that a a spouse has under a trust for sale are capable of recognition as overriding interests. Dispositions of land, provided there are at least 2 trustees or a trust corporation, overreach the trust. This means that the purchaser takes free from them, whether or not he has notice of them, and the trusts are enforceable against the proceeds of sale.

*City of London BS v Flegg [1988] AC 54 POINT OF LAW

There must be a combination of an interest which justifies continuing occupation plus actual occupation to constitute an overriding interest. Actual occupation is not an interest in itself.

*Abbey National BS v Cann [1991] 1 AC 56 POINT OF LAW

Actual occupation does not necessarily involve the personal presence of the person claiming to occupy; a caretaker or representative of the company can occupy on behalf of his employer. However, it involves some permanence which would rule out mere fleeting presence. the relevant date for determining the existence of overriding interests was the date of registration, but the date of actual occupation was that of completion.

*Link Lending Ltd v Bustard [2010] 2 EGLR 55 POINT OF LAW

The existence of actual occupation is a question of fact. Relevant factors included the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it and the nature of the property and personal circumstances of the person. There does not have to necessarily be continuous occupation.

*Malory v Cheshire Homes [2002] Ch 216 POINT OF LAW

What constitutes actual occupation of property depends on the nature and state of the property in question. If a site is uninhabitable, residence is not required, but there must be some physical presence, with some degree of permanence and continuity. The requisite physical presence must be such as to put a person inspecting the land on notice that there was some person in occupation. In this case, in a section that was later doubted, the Court also decided that becuase s 69 LRA1925 dealt only with the legal estate, general property law principles meant that as a victim of fraud, the defrauded party maintained the equitable interest. If they were in actual occupation at the relevant time, it was therefore an overriding interest. This meant that the innocent purchaser was bound all along, did not suffer a loss, and were therefore not entitled to an indemnity.

*NRAM Ltd v Evans [2018] 1 P & CR 3 POINT OF LAW

When considering "mistake" for the purposes of schedules 4 and 8 LRA 2002, the focus was on the position at the time the entry or deletion was made. If a registration was correct when it was made, it is very hard to see how it could become incorrect later. Thus, when a registration was made of a voidable transaction, it was not a mistake.

*Swift 1st Ltd v Chief Land Registrar [2015] Ch 602 POINT OF LAW

Malory Homes was decided per incuriam on the beneficial ownership point. The reasoning in Malory 'runs contrary to the general principle...that the register is a complete record of all enforceable estates and interests except for overriding interests and that it is registration rather than the transfer which confers title.'

National Carriers Ltd v Panalpina [1981] AC 67 POINT OF LAW

A lease can be frustrated like a contract.

*Hussein v Mehlman [1992] 2 EGLR 87 POINT OF LAW

A contract of letting can be brought to an end by repudiatory conduct.

Smith v Marable (1843) 11 M&W 5 POINT OF LAW

This case is authority that there is an implied covenant of fitness for habitation in a letting of a furnished home, and for the proposition that a contract of tenancy may be repudiated by a breach of such a condition and - incidentally - that it is not to be held against the tenant that he endured the breach for longer than he needed to.

*Hammersmith and Fulham LBC v Monk [1992] 1 AC 478 POINT OF LAW

A contractual periodic tenancy granted to two or more joint tenants can only continue with the consent of all. It is not that it can only be terminated with the consent of all.

*Bruton v London and Quadrant Housing Trust [2000] 1 AC 40 POINT OF LAW

An estate in the land is not necessary to grant a lease. A "lease" is not inherently proprietary. Instead, it merely describes the relationship between a landlord and a tenant.

Kay v Lambeth LBC [2006] 2 AC 465 POINT OF LAW

Non-proprietary leases do not bind the true owner.

Coatsworth v Johnson (1885) 55 LJQB 220 POINT OF LAW

The doctrine in Walsh v Lonsdale does not apply when there is no specific performance available.

Long v Tower Hamlets LBC [1998] Ch 197 POINT OF LAW

"taking effect in possession" in 54(2) LPA 1925 means that the three years start when the lease starts, not when the agreement is made.

Javad v Aqil [1991] 1 WLR 1007 POINT OF LAW

A tenancy springs from a consensual arrangement between two parties, so that the extent of the rights thus granted and accepted depends primarily upon their intentions. Entry into possession while negotiations proceed is one of the classic circumstances in which a tenancy at will may exist.

Remon v City of London Real property Company Ltd [1921] 1 KB 49 POINT OF LAW

"Tenant by sufferance", who entered by a lawful lease and holds over by wrong, invented probably to prevent averse possession. But tenants by sufferance seem to have been confined to persons who held over without the assent or dissent of their landlords, and not to include persons who held over wrongly despite of the active objections of their landlords.

*Street v Mountford [1985] AC 809 POINT OF LAW

A lease was defined as something which a) conferred exclusive possession of the land, b) in return for a rent and/or lump sum payment, and c) was not forever but for a fixed term.

*Watts v Stewart [2018] Ch 423 POINT OF LAW

There is a distinction between legal exclusive possession or a legal right of exclusive possession, on the one hand, and a personal right of exclusive occupation, on the other hand.

Legal exclusive possession entitles the owner to exclude all others, including the legal owner, from the property. Exclusive occupation may or may not amount to legal possession. If so, occupier is a tenant. If not, he isn't, and occupies it in some different capacity.

*Westminster City Council v Clarke [1992] 2 AC 288 POINT OF LAW

If an agreement which, in the particular circumstances, serves a legitimate purpose, does not confer exclusive possession, then it will be merely a licence. If the putative landlord can enter the space "for reasons other than to protect its interests", then there is no exclusive possession.

*Ashburn Anstalt v Arnold [1989] Ch 1 POINT OF LAW

Reservation of a rent is not necessary for the creation of a tenancy. Endorsed the constructive trust view of contractual licences, that when the owner of the property has so conducted himself that it would be inequitable to allow him to deny the claimant an interest in the property (ie if the conscience of the estate owner is effected), the court will impose a constructive trust for the licensee.

*Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 POINT OF LAW

For all leases, there must be a certain maximum term, or it would be void; there can be an uncertain minimum term eg a lease for 5 years determinable upon the end of the war would be valid because it has a certain maximum point, even though it may end beforehand.

*Mexfield Housing Co-operative Ltd v Berrisford [2012] 1 AC 955 POINT OF LAW

In the absence of any indication to the contrary, a tenancy described as being "from month to month" is presumed to be a monthly periodic tenancy, which either party may terminate by giving one month's notice. However, where a lease contains specific contractual provisions governing termination, those provisions will take precedence. If such an agreement creates a tenancy for an uncertain term, it cannot take effect as a tenancy in its original form. However, under section 149(6) of the Law of Property Act 1925, if the agreement would have constituted a tenancy for life before 1926, it will instead be converted into a tenancy for 90 years, subject to early determination as specified in the lease.

*AG Securities v Vaughan; Antoniades v Villiers [ [1990] 1 AC 417 POINT OF LAW

Parties to an agreement cannot contract out of the Rent Acts. A document which expresses the intention of both parties or one to create a license will nevertheless create a tenancy if the rights and obligations satisfy the legal requirements. In considering document/s to see whether a tenancy has been created, the court must consider the surrounding circumstances, including any relationship between the prospective occupiers, the course of negotiations and the nature and extent of the accommodation and the intended and actual mode of occupancy and accommodation.

*Aslan v Murphy; Duke v Wynne [1990] 1 WLR 766 POINT OF LAW

The general point of law established in this case is that whether an occupier holds a property as a tenant or a licensee depends on the true nature of the agreement rather than its formal wording. If the occupier is granted exclusive possession, they are likely to be a tenant, even if the written agreement states otherwise. The landlord cannot unilaterally convert a tenancy into a licence by inserting provisions that are mere pretences, such as a nominal requirement to share occupation or vacate the premises for a brief period each day. Furthermore, retaining keys does not automatically indicate a licence, but the underlying reason for key retention must be examined.

*Mikeover v Brady [1989] 3 All ER 618 POINT OF LAW

Identical agreements which conferred on 2 occupants a right of exclusive joint occupation of residential premises did not create a tenancy, as opposed to a licence, if the provisions for payment of rent created separate obligations to pay a share of the rent rather than a joint obligation to pay the whole rent, since there was no unity of interest.

*Camelot Guardian Management v Khoo [2018] EWHC 2296 POINT OF LAW

In determining whether an agreement creates a tenancy or a licence, the approach of the courts is:

The court will begin by construing the agreement between the parties to consider whether it creates a tenancy, especially seeing if it confers a right to exclusive possession: Street.

While constructing, court will consider words used in the document in context by reference to its subject-matter and in light of other relevant circumstances known or presumed to be known to the parties at the time of the agreement, other than prior negotiations as to the terms of the agreement.

No requirement of ambiguity in the contract, and it's normally safe to assume that the parties intended to give the words they chose their natural meaning.

Court will consider whether agreement is a sham device or a pretence whose object is to disguise the grant of a tenancy and evade the Rent Acts.

To identify sham device or pretences whereby the true bargain is not what's written, it is permissible to have regard to conduct before and after the agreement.

The production of a sham device or of a pretence ordinarily involves a degree of dishonesty, which the court is slow but not naively slow to find.

*Manchester CC v Pinnock [2011] 2 AC 104 POINT OF LAW

A person at risk of being dispossessed of their home by a local authority must have the right to challenge the proportionality of the eviction under Article 8 of the ECHR. The court must be able to assess whether the eviction is "necessary in a democratic society" and must have the power to resolve any relevant factual disputes. judicial procedure that only reviews proportionality without assessing factual disputes is inadequate. The court must have the ability to determine the facts independently rather than relying solely on traditional judicial review principles. Article 8 applies only when a person's home is under threat. If raised in proceedings, the court should initially assess the argument summarily. If the facts, even if proven, would not succeed in challenging proportionality, the argument should be dismissed. However, if disproportionality is established, eviction would be unlawful.

*Sims v Dacorum BC [2015] AC 1336 POINT OF LAW

A possession order made in accordance with contractual terms is not necessarily a violation of Article 8 (right to respect for home) or Article 1 of Protocol 1 (right to peaceful enjoyment of possessions). The tenant's rights are respected as long as eviction follows proper legal procedures, includes judicial oversight, and allows for a proportionality challenge under Article 8.

*McDonald v McDonald [2017] AC 273 POINT OF LAW

Although it may well be that art 8 is engaged when a judge meals an order for possession of a tenant's home at the suit of a private sector landlord, it is not open to the tenant to contend that art 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at lease where there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests.

*FJM v United Kingdom (2019) 68 EHRR SE5 POINT OF LAW

Confirmation by the ECtHR that because domestic legislation has made provisions about balancing the art 8/A1P1 rights of landlords and tenants, the tenant should not be entitled to require the court to consider the proportionality of the possession order.

Thomas v Sorrell (1673) Vaughan 330 POINT OF LAW

A dispensation or licence passes no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.

James Jones & Sons Ltd v Earl of Tankerville [1909] 2 Ch 440 POINT OF LAW

A licence to enter a man's property is prima facie revocable, but is irrevocable even at law if coupled with or granted in aid of a legal interest conferred on the purchaser, and the interest so conferred may be a purely chattel interest or an interest in realty.

*Winter Garden Theatre v Millenium Productions [1948] AC 173 POINT OF LAW

Whether a contractual licence is revokable depends on its terms.

Verrall v Great Yarmouth BC [1981] QB 202 POINT OF LAW

Held, that where appropriate, the court would protect any interest, whether an estate in land or a licence of a transient nature, by injunction or specific performance. In a proper case the court would grant specific performance of a contractual licence even where it had been repudiated before the licensee entered into possession.

Thompson v Park [1944] KB 408 POINT OF LAW

When a licence has been withdrawn, rightly or wrongly, the licensee has no right to re-enter the land. If he does, he is a trespasser. A licensor has the power to revoke the licence at any time, but he has no right to revoke it before the expiration of the term.

*Manchester Airport v Dutton [2000] QB POINT OF LAW

A licensor may obtain an order of possession against a bare trespasser (or anyone with a worse title than them) despite not being in occupation or possession at the time.

*King v David Allen [1916] 2 AC 54 POINT OF LAW

Contractual licenses do not create interests in land, so they do not bind successors.

*Errington v Errington [1952] 1 KB 290 POINT OF LAW

Contractual licenses have a force and validity of their own and cannot be revoked in breach of the contract. Neither the licensor nor anyone who claims through him can disregard the contract except a purchaser for value without notice. (Denning, of course).

*Binions v Evans [1972] Ch 359 POINT OF LAW

Whenever the purchaser takes the land impliedly or explicitly subject to the rights of the contractual licensee, a court of equity will impose a constructive trust for the beneficiary.

Lloyd v Dugdale [2002] 2 P & CR 167 POINT OF LAW

Even in a case where, in a sale of land, the vendor has stipulated that the sale shall be subject to stated possible incumbrances or prior interests, there is no general rule that the court will impose a constructive trust on the purchaser to give effect to them. Court won't impose a constructive trust in such circumstances unless it is satisfied that the conscience of the estate owner is affected so that it would be inequitable to allow him to deny C an interest in the property. In deciding whether or not the conscience of the new estate owner is affected in such circumstances, the crucial question is whether he has undertaken a new obligation to give effect to the relevant incumbrance or prior interest. Proof that the purchase price by a transferee has been reduced upon the footing that he would give effect to the relevant incumbrance or interest may provide evidence.

*Thorner v Major [2009] 1 WLR 776 POINT OF LAW

Most scholars agree that the doctrine of proprietary estoppel is based on 3 main elements: a representation or assurance made to C; reliance on it by C; and detriment to C in consequence of his (reasonable) reliance. In proprietary estoppel, the promisor's actual intentions are irrelevant.. What matters is whether their words and actions would reasonably convey an assurance to the promisee. A representation must be clear and unequivocal, and while assurances must relate to identifiable property owned or about to be owned by the defendant, absolute precision in defining the property is not strictly necessary in every case. Section 2 of the Law of Property (Miscellaneous provisions)Act 1989 does not affect straightforward estoppel claims which have no contractual connection.

*Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752 POINT OF LAW

Unconscionability as an objective value judgment on behaviour (regardless of the state of mind of the individual in question) plays a very important part in the doctrine of equitable estoppel in unifying and confirming the other elements. However, it proprietary estoppel cannot be the remedy for unconscionability unless the ingredients are there (including, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or some point of mixed fact and law, that the person against whom the claim is made can be estopped from asserting). Proprietary estoppel requires clarity as to the object of the estoppel and as to the interest in the property in question that denial or assertion would otherwise defeat. Conscious reliance on honour alone will not give rise to an estoppel. Proprietary estoppel cannot get around the formalities of a statute and prevent from being void what would otherwise be so.

*Davies v Davies [2016] EWCA Civ 463 POINT OF LAW

Every proprietary estoppel case is fact sensitive, but before the facts, here are a few legal propositions:

Deciding whether an equity has been raised and, if so, how to satisfy it is a retrospective exercise looking backwards from the moment when the promise falls due to be performed and asking whether, in the circumstances which have actually happened, it would be unconscionable for a promise not to be kept either wholly or in part.

The ingredients necessary to raise an equity are: an assurance of sufficient clarity, reliance by C on that assurance, and detriment to C in consequence of his reasonable reliance.

However, no proprietary estoppel claim can be divided into watertight compartments.

Detriment need not be financial or quantifiable, so long as it is substantial.

Must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of the detriment must be judged at the moment when the person who has given the assurance seeks to go back on it, with the test being unconscionability.

Thus the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result. The court must weigh the detriment suffered by the claimant against any countervailing benefits he enjoyed in consequence of that reliance.

The court has to exercise a broad judgmental discretion; however, this is not unfettered and must be exercised on a principled basis.

*Gillett v Holt [2001] Ch 210 at 225 POINT OF LAW

Proprietary estoppel is not made of watertight compartments. the overarching principle is to prevent unconscionable conduct. Assurances intended to be relied upon, and actually relied upon, will satisfy the reliance requirement. In some cases, reliance may be presumed. There must be a clear connection between the assurances given and the conduct constituting detriment.

*Wayling v Jones (1993) 69 P & CR 170 POINT OF LAW

In proprietary estoppel: Must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment. The promises relied on do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement. Once it has been established that promises were made, and there has been conduct by P of such a nature that inducement may be inferred then the burden of proof shifts to Ds to establish that he did not rely on the promises.

Sidhu v van Dyke [2014] HCA 19 POINT OF LAW

The burden of proof of reliance is still on the representee.

*Jennings v Rice [2003] 1 P & CR 8 POINT OF LAW

The remedy in proprietary estoppel must be proportionate to both the expectation and the detriment suffered. While the claimant's expectation is a starting point, it is not decisive—if it is uncertain, excessive, or disproportionate, the court may grant a more limited remedy.

*Guest v Guest [2022] UKSC 27 POINT OF LAW

Equity aims to prevent unconscionable repudiation of promises. The normal remedy is to fulfill the promise unless it would be disproportionate to the detriment suffered. If multiple remedies are possible, the promisor may choose the least burdensome for themselves.

Winter v Winter [2024] EWCA Civ 699 POINT OF LAW

In proprietary estoppel, the court may consider the overall balance of detriments and benefits both when determining whether detriment was suffered and when deciding on the appropriate remedy. A claimant can be found to have suffered detriment even if they cannot prove they would have acted differently without relying on the assurance.

Henry v Henry [2010] 1 All ER 988 (PC) POINT OF LAW

Cases may arise in which the particular circumstances surrounding a third party purchase may, notwithstanding C's overriding interest, require the court to reassess the extent of C's equity in the property (eg proprietary estoppel).

Brake v Swift [2020] EWHC 1810 POINT OF LAW

There are two types of proprietary estoppel claim: one where a person makes a statement (intending it to be relied upon) as to the current legal position of the land, and one where there is no statement about the current legal position, but a promise is made or an expectation created as to the future position. only the first can properly be said to be a property right which binds third parties in appropriate circumstances.

*Farrar v Miller [2018] EWCA Civ 172 POINT OF LAW

2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 (must be in writing) does not apply to proprietary estoppel. It is concerned only with contracts.

*Williams v Hensman (1861) 1 J & H 546 POINT OF LAW

At common law, a joint tenancy may be severed in 3 ways: an act operating on joint tenant's share, mutual agreement of all tenants, and mutual course of dealing (any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common).

*Harris v Goddard [1983] 1 WLR 1203 POINT OF LAW

A notice in writing of a desire to sever a joint tenancy pursuant to LPA 1925 s 36(2) took effect forthwith and therefore it had to evince an intention to bring about the desired effect immediately. The notice had to show an intention to bring about the consequences in LPA 1925 s 36(2), namely that the net proceeds of the statutory trust for sale shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.

*Burgess v Rawnsley [1975] Ch 429 POINT OF LAW

Severance by agreement does not require specific enforceability; however, it requires a communicated intention.

*Bull v Bull [1955] 1 QB 234 POINT OF LAW

An equitable tenancy in common is created when two people contribute to the purchase price of a house they both intend to live in, the share of each being in proportion to their contribution. That means that both parties are entitled to the rights they would have as legal tenants in common, such as possession.

*Davis v Jackson [2017] 1 WLR 4005 POINT OF LAW

You don't have to use TOLATA ss 12 and 13; you can still use the common law when deciding whether there is an obligation to pay occupation rent regarding joint tenants.

*Ali v Khatib [2022] EWCA Civ 481 POINT OF LAW

The starting point in every case is that a co-owner in occupation is not obliged to pay occupation rent merely because he is living in the property and the co-owner is not. Something more has to be shown which makes it just and equitable that he should pay that other owner for his use and occupation of the property—for example, that he is exploiting the property for his own financial gain, or that he has precluded the co-owner from exercising a right of occupation that he (or she) wished to exercise. The focus should therefore be on the behaviour of the person in occupation, not the non-occupying party.

*Mortgage Corporation v Shaire [2001] Ch 743 POINT OF LAW

S 15 TOLATA has changed the law; there is now greater flexibility than before for the courts.

*White v White [2004] 2 FLR 321 POINT OF LAW

When more than one person created the trust, the intention for the purposes of TOLATA s15(1)(a) must be the intention of all the persons who created the trust and be an intention which they had in common. The intention could not include intention subsequently come to; it must be the intention at the time of making the trust.

*Bagum v Hafiz [2016] Ch 241 POINT OF LAW

Since it was not a function of trustees of land directly to deal with or dispose of beneficial interests under the trust, the court had no power to order or direct that one beneficiary sell or transfer his beneficial interest to another beneficiary. The clear object and effect of ss14 and 15 was to confer upon the court a substantially wider discretion (but not necessarily powers) than the trustees themselves enjoyed.

*Re Citro [1991] Ch 142 POINT OF LAW

Interests of creditors would normally prevail over those of the other spouse where one spouse is bankrupt and the home must be sold. This is not the case in exceptional circumstances, but mere eviction and education problems are not exceptional circumstances.

*Barca v Mears [2005] 2 FLR 1 POINT OF LAW

The insolvency Act, specifically what counts as exceptional circumstances, may have to be expanded to include circumstances of the ordinary kind but which are exceptionally severe in order to comply with the ECHR.

*Equity and Law Home Loans v Prestidge [1992] 1 WLR 137 POINT OF LAW

If a property is originally purchased with a mortgage to which a co-owner has consented, their consent can be imputed to a subsequent remortgage on no less favourable terms, even if they were unaware of it. As a result, the new mortgage takes priority over the co-owner's beneficial interest.

Lloyds Bank v Rosset [1991] 1 AC 107 POINT OF LAW

First question in family homes cases is whether prior to the acquisition, or exceptionally at some later date, there has been any agreement, arrangement, or understanding reached between the parties that the property is to be shared beneficially. This has to be evidenced by express discussions between the partners. Once this has been established it will only be necessary for the partner asserting a claim to the beneficial interest to show that they've acted to their detriment or significantly altered their position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.

*Stack v Dowden [2007] 2 AC 432 POINT OF LAW

When a domestic property is conveyed into the joint names of cohabitants without a declaration of trust, there is a prima facie case that both legal and beneficial interests are joint and equal. The burden of proof is on the party seeking to show that equity should not follow the law. Such a party must prove that the cohabitants had a common intention that their beneficial interests differ from their legal interests and specify how. The court should assess the whole course of conduct of the parties concerning the property to determine their common intention. The law has moved beyond the presumption of a resulting trust, considering factors beyond mere financial contributions to ascertain the parties' true intentions.

*Jones v Kernott [2012] 1 AC 776 POINT OF LAW

In summary, these are the principles in cases like this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests:

Starting point is equity follows law and they are joint tenants in law and equity.

That presumption can be rebutted by showing that the parties had a different common intention at the time when they acquired the home, or that thy later formed the common intention that their respective shares would change.

Their common intention is to be deduced objectively from their conduct. Use Stack [69] to determine.

Where it is clear either that the parties did not intend a joint tenancy at the outset, or had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, "the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property". Whole course of dealing should be given a broad meaning.

Each case will turn on its facts. [51]

Geary v Rankine [2012] 2 FLR 1409 POINT OF LAW

In a single name case of which this is one the first issue is whether it was intended that the claimant should have any beneficial interest in the property at all. If that issue is determined in the claimant's favour, the second issue is what that interest is. There is no presumption of joint beneficial ownership. But the common intention has to be deduced objectively from their conduct. It has to be the actual intention of both parties, express or inferred.

Graham-York v York [2016] 1 FLR 407 POINT OF LAW

That because the role of the court was not redistributive justice, the fact that one party was a victim of domestic abuse was not a relevant factor. The court should look at the whole course of dealing in relation to the property. Relevant factors included the extent of C's contribution, both financial and non-financial.

Kahrmann v Harrison-Morgan [2019] EWCA Civ 2094 POINT OF LAW

It is possible for common intention constructive trusts to arise outside of the family homes context, for example the commercial context. However, it will probably be the traditional kind and not the same as the inference It is possible for common intention constructive trusts to arise outside of the family homes context. In other words, it probably has to be express.

Williams v Williams [2024] EWCA Civ 42 POINT OF LAW

Where property is purchased for business purposes, even if it is also a home, there is no presumption of joint tenancy. This is because in commercial enterprises, survivorship is unlikely to be intended and certainly cannot be presumed.

*Hudson v Hathway [2022] EWCA Civ 1648 POINT OF LAW

Detrimental reliance is still required to form a common intention constructive trust.

*Marr v Collie [2018] AC 631 POINT OF LAW

when a cohabiting couple purchases property in their joint names, even as an investment, the presumption of a resulting trust does not automatically apply. Instead, the court must assess the parties' intentions. If there is evidence that they intended joint beneficial ownership, despite unequal contributions, that intention should be upheld. However, where no clear intention exists, or the parties were unaware of the implications of joint ownership, the resulting trust may still provide the answer.

**Re Ellenborough Park [1956] Ch 131 POINT OF LAW

Four characteristics of an easement: there must be a dominant and a servient tenement; an easement must "accommodate" the dominant tenement (ie whether there is sufficient connexion between one and the other); dominant and servient owners must be different persons; and a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

Egerton v Harding [1975] QB 62 POINT OF LAW

An easement comprising a positive obligation could be imposed by custom.

Liverpool CC v Irwin [1977] AC 239 POINT OF LAW

A mere grant of an easement does not carry with it any obligation on the part of the servient owner to maintain the subject matter.

*Regency Villas Ltd v Diamond Resorts Ltd [2019] AC 553 POINT OF LAW

For a right to qualify as an easement, it must accommodate the dominant tenement by serving its normal use and enjoyment. It must have practical importance to the benefitted land, rather than merely benefiting the individual right-holder or increasing the land's value. Whether a right accommodates the dominant tenement is a question of fact. n easement must be clearly defined, not precarious, and must not be so extensive or intrusive as to exclude the servient owner from enjoying or controlling their land. Additionally, it must not impose any obligation on the servient owner to spend money or take active steps beyond mere passivity.

Haddock v Churston Golf Club Ltd [2019] 4 WLR 60 (CA) POINT OF LAW

Easements granted by express grant cannot impose positive obligations on the owners of servient tenements. If a provision drafted by a competent property lawyer does do so, it will take effect as a covenant and therefore not be a right in rem binding on successors in title.

London & Blenheim Estates v Ladbroke Retail Parks [1992] 1 WLR 1278 POINT OF LAW

An easement requires both a dominant and servient tenement in separate ownership at the time of the grant. If the servient land is transferred before all conditions for the easement are satisfied, the easement cannot bind successors in title. Additionally, there can be no grant of an easement in reversion, as an easement cannot exist without an existing dominant tenement.

*Phipps v Pears [1965] 1 QB 76 POINT OF LAW

To be capable of grant, an easement must be of a kind that is recognised by the law.