PROPERTY RIGHTS

Penninstone Holdings Ltd v Rock Ferry Waterfront Trust

An Escheat → based on 2 propositions 1) that all land in England is held of the crown and 2) no land can be without an owner: The first of these reflects the basic principle of tenure (that all land at the beginning belonged to the crown and was given away to a feudal tenant in chief and when this ends the land reverts to the Crown = the effect of this is that freehold title is terminated 

• The mere fact there was dissolution of a company does NOT result in Escheat instead it would become (under the laws of England) Bona Vacantia 

• While other jurisdictions company law may apply; land in England is subject to English law and when dissolution is not governed by the companies act (as per Megarry and Wade) there will be an Escheat of the real property in England 

• Curiously; although an Escheat stops existing freehold interest, it does not terminate derivative interests, such as leases or mortgages created out of that freehold created by the transfer from Tolca to Pennistone (while this was not directly argued I am prepared to proceed on that assumption) 

Appleby v UK

FACTS

The originally government owned Washington Town Centre was sold to private company Postel. 2 environmental activists came onto the premises to hand out flyers for their political agenda. They were asked to leave as the owner wanted to remain politically neutral. The Applicants argued that the State was responsible for the interference with their rights because it had built and transferred the land into private ownership and that the State had a positive obligation to secure the exercise of their rights because the information and ideas they wished to impart constituted political expression.

OUTCOME

The Court reasoned that States may have a positive obligation to regulate the access to private property to protect the enjoyment of the rights contained on the European Convention on Human Rights (ECHR) when the bar on the access to private property has the effect of preventing any effective exercise of those rights. However in this case, the Court found that the Applicants had not been effectively prevented from communicating with their fellow citizens as they could and had exercised their rights through other means.

R (Day) v Shopshire Council

FACTS

Challenge to a planning permission grant given by the Shopshire city council to a private company of land that forms part of the greenfield recreation grounds. There was previously a statutory trust which required a number of requirements to be complied with for this transaction to be valid, which were not in this cases followed. 

• Shropshire city council contends that the effect of section 128(2) was to extinguish the statutory trust or at least that the rights of the public access to the land did not exist in a form that gave rise to a material consideration that the planning committee could take into account when deciding whether to take into account planning permission

OUTCOME

Grant of panning permission was quashed 

→ in my judgement simple transfer of the land into private ownership is not sufficient to extinguish the trust: if this were the case there would be no reason for the statutory provisions. This right is similar to other public rights and there seems to be no reason why this one should be more easily displaced than others 

• “I would therefore reject the argument that the answer to the present case is simply that as soon as the land comes into private ownership, the trust must be extinguished. There is no support for such a conclusion in the authorities and the cases ..” 

Keppell v Bailey

FACTS

A contracted with its stockholders that the limestone used in their ironworks would only be carried on the railway built by the company (thus earning the company money each time). D took over C’s company and planned to build a new railroad. C applied for an injunction, arguing their promise bound future owners.

OUTCOME

The injunction was not granted 

Why there was no covenant 

1. It was in violation of the provisions and policy of the local Act 

2. The Covenant is not binding on the assignees 

1. The covenant does not run with the land and therefore is not binding 

2. Even if their was a covenant for the assignment of the Beaufort Works could this bind future owners OR give them a right of action against future people recieivin those assets? → No 

• It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner: it is clearly an inconvenient both to the science of the law and to the public weal that such a latitude should be given

Why is this? → it would be a great detriment and add much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property and to impress upon their lands and tenemnts a particular character which should follow them into all hands, however remote 

• Potential exception in cases of lease?: This is distinct from the covenant of a lease however as in this case the estate is not out of them only possession is but even in this case the law does not leave the reversioner the absolute licence to invent concennets which shall affect the land in the hands of those who take by assignment of the term -  The covenant must be of such a nature as to “inhere in the land” (to use the language of some of the cases) 

→ Even if he the continuing owner, is confined within certain limits by the view which the law takes of the nature of property; and if beyond those limits he were to imagine a stipulation, the covenant in which he should embody would not run with the land but only bind the lessee personally and his representatives 

Obiter

• Perpetuities → the lease did not offend the rule against perpetuities 

• In restraint of trade → 

• Want of mutuality → 

Commentary

The law said that it could never bind HOWEVER, this is not strictly true now! Some may bind in equity (this is not super important here but just to note that this isn't the final word regard covenants) 

• Some students have used the science and public good as the entry point: and have

Science of the Law → creates a good flow 

• Autonomy MacFarlance vs Dagean 

• Public Good: Merrill v Smith and Rudden

Hill v Tupper

FACTS

X made a contractual promise giving C an exclusive right to put boats on the canal, but D also put boats on it. C sought to sue D for interference with his legal interest in land.

OUTCOME

C could not sue D as he had no legal interest in land.

• As per Ackroyd v Smith: it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a license of covenant on the part of the grantors, and is binding on them as between themselves and the grantee but gives him no right of action in his own name for the infringement of the supposed exclusive right 

→ so the law will not permit the owner of an estate to grant it alternatively to his heirs male and his heirs female. A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decision or controlled by acts or parliament

• A grant may bind himself by convenient to allow any right be pleases over his property but he cannot a new it a new incident so as to enable the grantee to sue in his own name for an infringement of such a limited right that is not claimed 

• This grant is perfectly valid as between the P and the channel company; but in order to support this action the P must establish that such an estate or interest vested in him that the act of the D amounted to an eviction (this was not satisfied0 

→ to admit the right would lead to an infinite variety of interests in land and an indefinite increase of possible estates 

National Provincial Bank ltd v Ainsworth

FACTS

D had an equitable right to remain in occupation in X’s (her former husband) home (deserted wife’s equity). X had defaulted on the mortgage on the house, so C (the bank) sought an order of the sale of the house. D argued she had an overriding interest that had priority to the mortgage.

Issue #1: Was the wife’s interest an interest in property?

Issue #2: If so, was it an overriding interest under s70(1)(g) LRA 1925? (no)

OUTCOME

The order of sale could be granted - D’s right was only a personal right (a “mere equity”, as opposed to an “equitable estate or interest”) against X, meaning it is not binding against C (or any other third parties).

• On any division, then which is to be made between property rights and personal rights on the other hand, however broad or penumbral the separating brand will be there can be little doubt where the wifes rights fall. Before a right or any interest can be admitted into the category of property or of right affecting property, it must be definable, identifiable by 3rd parties, capable in nature of assumption by third parties and have some degree of permanence or stability 

Obiter 

• This right is too “uncertain” to be a property right: Its duration is only as long as a marriage is, which may change “overnight” and is “incapable of precise definition”.

  • C could claim to be deserted but X could say he is just living elsewhere for business reasons - although there are clear cases, how can a third party be expected to involve himself in such complications?

  • Even if one accepts the description of the wife's right as an equity, that does nothing to elevate the right from one of a personal character, to be asserted against the husband, to one which is binding on successors in title to land 

Bernstein v Skyviews [1978] QB 479

FACTS

D flew over the P’s land for the purpose of taking an aerial photo of the P’s country house which they offered to sell him. P claimed damages alleging that by entering his airspace the D were guilty of trespass

OUTCOME

The D was not guilty: the owners rights in the airspace above his land are restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it, and above that height he had no greater rights than any other member of the public; that accordingly, the D’s aircraft did not infringe any of these rights and so did not commit a trespass

• The P relies on the old latin maxim “cujus est solum ejus est usque ad coelum et ad inferno” → while this has been applied it was to sases where the structures were attached to the land 

• While there is authority not to interfere with airspace “I can find no support in authority for the view that a landowners rights in the airspace above his property extent to an unlimited height … the problem is to balance the rights of an owner to enjoy the use of the 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 judgement best struck in our present society by restricting the rights of an ower in the airspace above his land to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it: 

• If C had unlimited rights over the airspace above his property, this would lead to “the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden”.

Bocardo SA v Star Energy [2011] 1 AC 380

FACTS

In 1999, the first defendant obtained a license to extract oil from a reservoir beneath land in Surrey, which involved boring pipelines under the claimant’s land without obtaining the claimant’s permission or a court order under the Mines (Working Facilities and Support) Act 1966. The second defendant acquired the license in 2007. The claimant sued for trespass, arguing that the installation of the pipelines without consent was an unlawful encroachment on their land and that a licence under the Petroleum (Production) Act 1934 was no defence (because D did not have C’s permission.

OUTCOME

The appeal was dismissed; There had been a trespass because a landowner owns all the strata and minerals underneath their land (unless they have been conveyed to someone else).

• On the above surface position: The development of powered flight has made it impossible to apply the principle literally → it was accepted that the ower has certain rights in the airspace above his land and was willing to accept that any incursion into airspace at a height which may interfere with the ordinary user of the land was trespass; but wholly different conditions apply when considering airspace which could not be used 

• On the position below the surface: I think that the reasons for holding that the brocard has no place in the modern worlds as regards below the surface does not have the compelling reasons as above the surface 

• Airspace as a public highway to which the public has a just claim: the same cannot be said about the airspace → the better view is to hold that the owner of the surface is the owner of the strata beneath is including the minerals that are found to be there unless there has been a conveyance at common law or else by statute to someone else 

Walsh v Lonsdale

Facts

D had made a contractual agreement to grant C a lease, where rent would be paid for a year in advance. A deed was never executed, so C never acquired a legal lease, but was given possession and paid quarterly rent. D sought payment of one year’s rent in advance but C sought an injunction on the basis that he had an implied tenancy at law and was not bound by the agreement

Outcome

The landlord was entitled to claim the rent in advance because the lease is subject to the terms of the executory lease agreement (i.e. an equitable lease arising from D’s obligation to grant C the lease); “it appears to me that being a lessee in equity, he cannot complain of the right of the exercise of distress merely because the parchment and paper was not signed” 

• According to the equitable maxim “equity looks on as done that which ought to be done”, the parties were treated as having a lease enforceable in equity from the date of agreement to grant the lease

Scott v Southern Scally

Facts

Vendor agreed to sell her home to a purchaser acting on behalf of N, with the arrangement that the vendor could stay in the property indefinitely at a discounted rent after the sale, in exchange for the vendor paying part of the sale price back to N. However, this arrangement wasn't included in the sale contract. The purchaser obtained a mortgage from the lender based on the property being bought at full value with vacant possession. All key events—exchange of contracts, completion, and mortgage signing—took place on the same day.

Later, in violation of the mortgage terms, N attempted to give the vendor a discounted two-year tenancy. When the purchaser defaulted on the loan, the lender sought possession of the property.

Outcome

The vendor had acquired no more than personal rights against the purchaser when she had agreed to sell her house on the basis of the purchaser's promise that she would be entitled to remain in occupation; that the vendor's rights had only become proprietary and capable of taking priority over a mortgage when they had been fed by the purchaser's acquisition of the legal estate; and that, since the acquisition of the legal estate and the grant of the lender's charge were one indivisible transaction, the vendor could not assert against the lender an interest which had only arisen on completion