Also view a selection of Property Law Cases and the corresponding Term
New Property Cases & Statutes — Real Estate Defined
Cases (UK)
41-60 Albert Palace Mansions (Freehold) Ltd v Craftrule Ltd [2010]
Austin v Southwark LBC [2010]
Bocardo SA v Star Energy UK Onshore Ltd [2010]
Clarence House Ltd v National Westminster Bank plc [2010]
Derrick Barr and Others v Biffa Waste Services Limited [2011]
Dominion Corporate Trustees Ltd v Debenham Properties Ltd [2010]
First Plus Financial Group plc v Hewett [2010]
Forty-Five Holdings Ltd v Grosvenor (Mayfair) Estate [2010]
Furmedge v Chester-Le-Street District Council [2011]
Geary v JD Weatherspoon PLC [2011]
Grand v Gill [2010] EWCA Civ 554, [2011] 21 EG 95 (CA)
Great Estates Group Ltd v Digby [2011] (CA)
Hotgroup plc v Royal Bank of Scotland plc [2010]
HXRUK II (CHC) Limited v
Marcus Alexander Heaney [2010]
Ibrend Estates BV v NYK Logistics (UK) Ltd [2011]
Jenson v Faux [2011]
Jones v Kaney [2011]
Lambert v Barratt Homes Ltd [2010]
Link Lending Ltd v Hussein [2010]
London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011]
Nicholas Prestige Homes v Neal [2010]
North Eastern Properties Ltd v Coleman and another [2010]
Oliver v Symondsem> [2012]
Patel v Keles [2010]
Paddington Basin Developments Ltd v West End Quay Estate Management Ltd [2010]
Philips v Francis [2010]
R (Sainsbury's Supermarket Ltd) v Wolverhampton City Council [2010]
R (Smith) v Land Registry [2010]
Roadside Group Ltd v Zara Commercial Ltd [2010]
Samarenko v Dawn Hill House Limited [2011]
Stadium Capital [No 2] Ltd v St Marylebone Property Co plc [2012]
Suurpere v Nice [2011]
Weir v Area Estates Ltd [2010]
Van Dal Footwear Ltd v Ryman Ltd [2010]
Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011]
Statutes (Eng & Wales)
Assured Tenancies (Amendment) Act (England) Order 2010
Mortgage (Repossession) Protection of Tenants Act 2010
Cases (US)
Alligood v LaSaracina (2010)
Bleecker Street Tenants Corp. v. Bleecker Jones LLC (2011)
Holmes v. Summer (2010)
In re Metropolitan Transport Authority, 83 AD.3d 314, 927 NYS.2d 67 (2011)
North Adams Apartment Limited v. City of North Adams (Mass App Ct 2011)
Kassis v. Ohio Cas. Ins. Co. (2009)
US Bank National Association v. Antonio Ibanez (2011)
Statutes/Codes (US)
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008
CASES (UK)
| Case | Term & Comment |
| London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356, [2011] 48 EG 86 (CA) | as of right An implied licence is a question of fact. There has to be some overt act, such as a clear, even though non-verbal, indication that permission has been granted or a previous lience will be permitted to continue. |
| K/S Victoria Street v House of Fraser (Stores Management) Limited [2011] EWCA 330, 32 EG 56 (CA) | authorised guarantee agreement (AGA) A guarantor of the assigning tenant cannot be required, or voluntarily agree, to guarantee the assignee's obligations under the lease; any such agreement is void and unenforceable |
| Patel v Keles [2009] EWCA Civ 1187, [2010] 2 WLR 1159 (CA) | business tenancy When the landlord had a prior intention to sell the premises, he was able to oppose the right to a new tenancy on the grounds that he intends to occupy holding for the purpose of carrying on a business "to be carried on by him therein". The intention has to be genuine and, although it need not be for any minimum period of time, it must be "more than short term". |
| R (Sainsbury's Supermarket Ltd) v Wolverhampton City Council [2010] UKSC 20, [2010] 20 EG 144 (SC) | compulsory purchase The acquiring authority not permitted to take into account a commitment by the developer to carry out work on an unconnected site, adopting similar principles to the "material considerations" relevant to a planning condition. |
| Stadium Capital Holdings (No.2) Ltd v St Marylebone Property Company Plc [2010] EWCA Civ 952 (CA) Stadium Capital [No 2] Ltd v St Marylebone Property Co plc [2011] EWHC 2856, [2012] 04 EG 108, 118 |
damages Damages for trespassing hoarding based on “reasonable licence fee” as would be negotiated between the parties but not, as proposed by the High Court, the entire profit derived from the user. Damages for overhanging advertising hoarding to be "calculated on the basis of a hypothetical negotiation between reasonable persons in the position of the site owner and the wall owner". |
| Van Dal Footwear Ltd v Ryman Ltd [2010] 1 All ER 883 (CA) | damages In English law, the damages for the breach of a repairing covenant, during or at the end of the lease, is based on the diminution in the value of the landlord's reversion. This is assessed as the value of the property as if there had been no breach of the repairing covenant less the value of the property in its condition as at the date the landlord retakes possession. |
| Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2010] 31 EG 63 (SC) | damages Damages for trespass arising from the laying an unauthorised oil pipeline based upon the amount of compensation that would have been payable as if the right had been acquired by compulsory purchase (which could have been used). |
| Scullion v Bank of Scotland (t/a Colleys) [2011] EWCA Civ 693, [2011] 25 EG 105 (CA) | duty of care Surveyor not liable to borrower for valuation provided to mortgagee in the case of a purchaser buying a flat to let, because the purchaser unlikely to rely on that valuation, but more likely to obtain his own valuation advice on rental and capital values. |
| Samarenko v Dawn Hill House Limited [2011] EWCA Civ 1445 (CA) | deposit In almost all contracts for the ale of land, a deposit is a prequisite; payable at the time the contract is executed. If payable at a later date normally time is of the essence. "[t]he vendor almost always requires a deposit to be paid on exchange of contracts. If the purchaser is not willing or able to pay a deposit at that point, the vendor will not exchange contracts.… it is difficult to imagine that a contractual obligation to pay a deposit will ever be anything other than a term of fundamental importance in the contract, that is to say a term which would be regarded at common law as a fundamental term or condition, rather than a warranty or an innominate term, and so any breach of it would entitle the innocent party to treat the contract as at an end" |
| Philips v Francis [2010] 24 EG 118, [2010] L & TR 28 | dwelling or dwelling-house Where a landlord has a statutory obligation under the Landlord and Tenant Act 1985, ss. 18–30 to supply information to a tenant about the service charges he is seeking to recover, the 'dwelling' does not have to be used as a principal or primary home, but can be a holiday chalet. |
| Oliver v Symonds [2012] EWCA Civ 267, [2012] 22 EG 86 (CA) | easement A right of way cannot be widened to accomodate larger vehicles than originally permitted. As a rule, the adjoining owner can build up to the endge of the right of way, even if that prevents a vehicles swinging outside the designated track. 'Swing space' or 'verge space' do not arise by implication, unless it is clear that the use of the verge is clearly a necessity to the original grant or was intended as part of the original grant. |
| Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 15 EG 93 (SC) | enforcement notice Enforcement notice cannot be avoided when planning permission is obtained, but the intended use is subsequently hidden from the planning authority, e.g. a barn that is subsequently used as a private house. |
| Jones v Kaney [2011] 2 WLR 823, [2011] 14 EG 95 (SC) | expert witness; professional negligence An expert witness can be liable for professional negligence if he gives evidence that is outside his "reasonable expert opinion". The evidence may not be within the duty to provide advice for the court, but may still the client with a claim for negligence towards him. "If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client. If, however, he gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court, because he will have provided independent and unbiased assistance to the court. But he will be in breach of the duty owed to the client" |
| Jenson v Faux [2011[ EWCA Civ 423, [2011] PLSCS 107 (CA) | fit for habitation/duty of care Statutory obligation to carryout work for the provision of a dwelling "in a workmanlike, or as the case may be, professional manner" does not apply to work of renovation. The Defective Premises Act 1972 refers to the "provision of a dwelling" so that, interpreted strictly, remodelling of an existing dwelling is not affected by the Act, unless the extent of the work amounts to the "provision" of a dwelling or a dwelling that had a "different identity". (Although the person carrying out the work may have a contractual obligation, or a common law duty of care, for the work carried out.) |
| R (Smith) v Land Registry [2010] 11 EG 121, [2010] WLR (D) 72 (CA) | highway An adverse possessor or 'squatter' cannot acquire title to land under a public highway by adverse possession because, as a rule, he cannot defeat the public's right of access. |
| Geary v JD Weatherspoon PLC [2011] EWHC 1506 | invitee Inviting someone on to premises does not entitle them to engage in risky activities, such as sliding down the banister (reinforcing The Calgarth; The Otarania [1927] P 93, 110 (CA)) |
| 41-60 Albert Palace Mansions (Freehold) Ltd v Craftrule Ltd [2010] EWHC 1230, [2010] 31 EG 64 | leasehold enfranchisement In the case of collective enfranchisment, a self-contained building can be purchased as a whole, even though it is capable of subdivision into separate 'self-contained' buildings, provided there is a single freeholder and over 50% of the qualifying tenants of the whole want to enfranchise (it does not matter that more than half of the tenants in one of the potential subdivisions do not want to enfranchise). |
| Dominion Corporate Trustees Ltd v Debenham Properties Ltd [2010] NPC 63, [2010] All ER (D) 264 | literal construction Failure to perform "any of the provisions of the agreement" could not allow one party to avoid a substantial payment on the basis of a minor breach. |
| Forty-Five Holdings Ltd v Grosvenor (Mayfair) Estate [2009] UKUT 234, [2010] 02 EG 84 (UT) | marriage value In the case of a statutory right to collective leasehold enfranchisement, when assessing the value of the participating tenant's interest the potential to vary the terms of the tenant's lease after enfranchisement is a factor to be taken into account when calculating the marriage value. In particular, any development value that might arise after the new lease is granted should be brought into account. |
| Furmedge v Chester-Le-Street District Council [2011] EWHC 1226, [2011] All ER (D) 162 | negligence Public 'occupiers' of an inflatable structure to which the public were allowed access, especially as the local council had failed to make "proper risk assessment" of the security of the sculpture. |
| Derrick Barr and Others v Biffa Waste Services Limited [2011] EWCA Civ 312 (CA) | nuisance A liability for nuisance in the form of smells from a waste disposal and landfill site is not excluded solely because the creator had complied with the statutory environmental requirements . |
| Hotgroup plc v Royal Bank of Scotland plc [2010] All ER (D) 280, [2010] 23 EG 107 | notice Notice to exercise break clause in lease invalid when copy not served on property manager as expressly required under terms of lease. |
| Lambert v Barratt Homes Ltd [Manchester Division] [2010] EWCA Civ 68, [2010] EG 72, 75 (CA) | nuisance In common law, the duty to a neighbour is "a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable to prevent or minimise the known risk of damage or injury to one's neighbour or to his property", Leakey v National Trust for Places of Historic Interest or National Beauty [1980] QB 485, 524 (CA). |
| Link Lending Ltd v Hussein [2010] WLR (D) 424, [2010] 18 EG 98 (CA); Link Lending Ltd v Bustard [2010] EWCA Civ 424, [2010] 28 EG 86, 88 (CA) | occupation A person may be considered still in 'occupation' even if in hospital or a residential care home, provided there is an intention to return home. |
| Clarence House Ltd v National Westminster Bank plc [2010] 08 EG 106, 1 WLR 1216 (CA) | possession Unless there is an express provision to the contrary, possession in a covenant restraining parting with or sharing possession of premises should be given its normal meaning of the right to enter the land to the exclusion of others and not "its extended meaning as including the right to receive rents and profits of land". |
| HXRUK II (CHC) Limited v Marcus Alexander Heaney [2010] EWHC 2245, [2010] 44 EG 126 | right of light Injunction granted requiring the removal of part of an office building when developer carried out construction work knowing that it might infringe the neighhbour's right of light, even though loss was quantifiable (appeal pending). |
| Great Estates Group Ltd v Digby [2011] EWCA Civ, [2011] 43 EG 104 (CA) | sole agency In order to comply with the requirements of the Estate Agents (Provision of Information) Regulations 1991 an estate agent must uuse the words in the regultions concisely and the exact circumstances in which a commission is payable must be clear to the client. |
| Nicholas Prestige Homes v Neal [2010] All ER (D) 22 (CA) | sole agency Sole agent entitled to damages a commission (equal to the commission that might otherwise have been earned), even though another agency agreement is in place, which effectively results in a double commission. |
| Suurpere v Nice [2011] EWHC 2003, [2011] 39 EG 110 | tenancy deposit scheme Failure to provide the prescribed information about the tenancy deposit scheme to a assured shorthold tenant resulted in the landlord being obliged to pay the tenant three times the amount of the deposit as provided for by statute, even tought the deposit may have been reapid at a later date (Housing Act 2004, ss. 213(6), 214(4)). This is a personal responsibility of the landlord and cannot be circumscribed by information suppied by the government-sponsored Deposit Protection Service (DPS). Recommended a wider dissemination of information from the website of The Deposit Protection Service (Prescribed Information Relating to Tenancy Deposits and Terms & Conditions) |
| Grand v Gill [2010] EWCA Civ 554, [2011] 21 EG 95 (CA) | structure Internal plasterwork is part of the "structure"; it is merely “a smooth constructional finish to walls and ceilings” |
| Berrisford v Mexfield Mexfield Housing Co-operative Ltd [2011] 46 EG 105, [2011] 3 WLR 1091 (HL) | term A tenancy granted for an uncertain term is void. If rent has been paid and received a periodic tenancy comes into effect, based on the period for which the rent is paid and accepted, terminable by notice to quit given by either party (Prudential Assurance Co Ltd v London Residuary Body). However, if the tenancy is granted to an individual, based on establihed common law principles (Litt Ten 382; 1 Co Litt 42a; Shep Touch 275), it will be converted to a lease for a term of 90 years, terminable on the death of the tenant. After the death of the tenant the lease may be terminated by either party giving one month's notice on a quarter day that is appropriate to the tenancy, or if there is no quarter day applicable to the tenancy, one of the usual quarter days (Law of Property Act 1925, s. (146(9). But, if the lease is granted to a corporate entity the original rule of Prudential Assurance Co Ltd v London Residuary Body, supra would apply creating a periodic tenancy. |
| Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2010] 31 EG 63 (SC) | trespass Drilling under land even at a depth of 2,800 ft is a trespass, but that there may be a point at which pressure and temperature would render the concept of ownership below the land an "absurdity". |
| Austin v Southwark LBC [2010] UKSC 28, [2010] 35 EG 94, 101 (HL) | secure tenancy/tolerated trespasser Refers to the term 'tolerated trespasser' as an oxymoron as a trespasser is simply "someone who should not be there". |
| Paddington Basin Developments Ltd v West End Quay Estate Management Ltd [2010] 27 EG 86 | service charge In the case of a tenancy of a dwelling, if the landlord wishes to carry out "qualifying works" or enter into a “qualifying long term agreement" there is a requirement to consult with the tenant. A qualifying agreement covers most contracts for over 12 months where any tenant will be required to contribute more than £100 per accounting period as part of the service charge (LTA 1985, s. 20, as amended). |
| First Plus Financial Group plc v Hewett [2010] 23 EG 108, [2010] All ER 248 (CA) | undue influence A wife reluctantly agreed to mortgage family home to pay off her husband's debts and his deliberate concealment of the fact that he was having an affair at that time was sufficient to justify setting aside the transaction. A party to a mortgage transacation should be "properly and fairly appraised of the relevant circumstances". |
| Roadside Group Ltd v Zara Commercial Ltd [2010] EWHC 1950 (Ch), [2010] 33 EG 70 | use clause A use clause is better in the passive voice, such as "the premises shall not be used for …", rather than an active voice, such as "not to use the premises for …", if the intention is that the tenant and any other user (e.g. a sub-tenant or licensee) of the premises is to abide by the covenant. The active voice may imply that it is only the tenant who is bound by the restriction, especially if the covenant is in a different form to others in the lease (Tophams Ltd v Earl of Sefton [1967] 1 AC 50, [1966] 1 All ER 1039 (HL); Roadside Group Ltd v Zara Commercial Ltd [2010] EWHC 1950 (Ch), [2010] 33 EG 70). Alternatively, the clause can be more emphatic, such as "not to use or permit any other party to use the premises …". |
| Ibrend Estates BV v NYK Logistics (UK) Ltd [2011] EWCA Civ 683, [2011] 25 EG 104 (CA) | vacant possession Vacant possession not given at time of break in lease when tenant permitted builders to carry out work to the premises to meet the requirements of a schedule of dilapidations, even though he could have asked them to leave and returned the keys to the landlord. |
| Weir v Area Estates Ltd [2010] 10 EG 121 | vacant possession Vacant possession not given when tenant's surrender of a lease not legally complete. |
| Clarence House Ltd v National Westminster Bank plc [2010] 08 EG 106, 1 WLR 1216 (CA) | virtual assignment A transfer of the economic benefits, with no parting with, or sharing of, possession constituted a virtual assignment, especially when the premises were sublet and only the head lease was 'assigned'. The assignee was only agent for the collection of rent and the head lessor remained responsible for the approval of any new sublease. Thus, there was no breach of the condition against parting with or sharing possession of the leased premises. |
| Oceanbulk Shipping & Trading SA v TMT Asia Limited [2011] 1 AC 662, ??, [2010] 4 All ER 1011, ?? (SC) | without prejudice Evidence of facts may be admitted to assist with the interpretation of an agreement, even though such information is imparted by one of the parties to the other during 'without prejudice' negotiations. |
| North Eastern Properties Ltd v Coleman and Another [2010] 12 EG 97 (CA) | writing Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which applies to the expressly agreed terms for the sale of land, does not apply to a term that is part of some simultaneous contract, such as the sale of chattels or the payment of a commission |
| Statute | Term |
| Assured Tenancies (Amendment) Act (England) Order 2010 | tenancy deposit scheme With effect from 1 October 2010, the limit for this scheme is raised to £100,000 p.a. bringing all tenacies below that limit within the scope of the Housing Act 1988. |
Mortgage (Repossession) Protection of Tenants Act 2010 | mortgage/power of sale Provides protection to a tenant who have been granted a tenancy without the approval of the lender (which is fairly common). Prior to the Act the tenant had no rights as soon as the mortgagee obtained posseession of the property. The tenant now has a right to a remain in possession in accordance with the tems of the tenancy and has right to two months notice to quit. The tenant also has a right to attend the the possession hearing and the court has the power to order any possession to be postponed for up to two months, dependant upon the tenant's circumstances and whether the tenant has conformed with the terms of the tenancy (especially the payment of rent). |
| Perpetuities and Accumulations Act 2009 | rule against perpetuities Section 5 limits the perpetuity period to 125 years (and no other period) (although a shorter period may be chosen for the placement of property in a trust). Thus, a future interest or right is void if it is clear that it will not take effect within 125 years from the date on which the instrument that created it took effect. |
| Statute/Code | Term & Comment |
| Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 | An Act to "promote the financial stability of the United States by improving accountability and transparency in the financial system, to end ''too big to fail'', to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes". The Act contains a number of important provisions that relate to real estate financing and investment and real estate appraisal, including:
|
| Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 | An Act that requires that all residential mortgage loan originators must be either state-licensed or federally registered.
In addition, a mortgage loan originator employed by a federally insured depository institution or any credit union or an owned and controlled subsidiary that is federally supervised must be registered. and all other mortgage loan originators, without exception, must be state licensed. All state licensed and federally registered mortgage loan originators must be registered with the Nationwide Mortgage Licensing System & Registry maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators |
Terms in bold are defined and explained in detail in the Encyclopedia of Real Estate Terms.
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