Property Case Alert for May-June 2012


Freetown Ltd v Assethold Ltd (21 May 2012)

The 14 day period for appealing against a Party Wall Award runs from the time the Award is posted and not received and the Appeal was out of time as a result. The Court applied the reasoning in CA Webber (Transport) Ltd v Railtrack Ltd (2004) in which it was held that a notice was served under the 1954 Act when posted.

Greene King Plc v Quisine Restaurants & Shasha (24 May 2012)

A term of an assignment of a lease which required the landlord to notify the Guarantor when rent payable by the assignee was over 2 months in arrears was not a condition precedent to the Guarantor being liable to pay all sums outstanding and simply case rise to damages for any loss suffered by delay in giving such notice and, in this case, no loss had been suffered.

Kettel v Bloomfold Ltd (25 May 2012)

The Landlord developer had no right to interfere with or build on car parking spaces granted to lessees or to relocate the spaces.The lessees were entitled to an injunction as interference with their rights would not be a trivial breach. The Court determined that the lessees did not have a demise to park but an easement to do so and that, if damages would have been an adequate remedy, they would have been £517,500, being a 50:50 split of the anticipated profit after allowing for a 25% developer’s profit.

Herrmann v Withers (30 May 2012)

The Defendant solicitors were held liable in damages for advising their clients that the property they were purchasing had a right to use the garden square nearby when it was ultimately established in Court proceedings that it had no such right as it did not front onto the square. They should have been more circumspect in their advice and pointed out that the position was uncertain. They were held negligent even though, once the issue arose after purchase, specialist Counsel agreed with their advice. The Court reduced the damages due to a failure by the Claimants to mitigate their loss by accepting a licence to use the garden. The Claimants recovered £65,000 for reduction in value plus stamp duty on this sum and £2,000 for distress and inconvenience. They were also awarded on an indemnity basis their costs of their unsuccessful proceedings to establish a right to use the garden.

Patel v MRD Property Developments (31 MAY 2012)

A landlord had complied with the requirements of the Lease to formally demand the insurance premium before pursuing forfeiture proceedings by providing the tenant with the insurance renewal demands rather than actually serving a formal demand.


A 20 year option agreement to acquire 5 car parks did not prevent the owner from seeking to sell the car parks individually during this period as it could not have been intended that the owner would be unable to dispose or charge of its interests individually for such a long period.

Fitzhugh v Fitzhugh (1 June 2012)

The termination of a Licence was ineffective aaas not all the licensors were party to the giving of the notice and this was a clear requirement based upon any sensible and commercial construction of the Licence which had been professionally drafted.

Cherry Tree Investments v Landmain (31 May 2012)

In a very important Judgment, the Court of Appeal held that it was not possible to rectify by construction a document that had been registered at the Land Registry (in this case a Charge) because it was a public document that 3rd parties would rely upon as drafted. Accordingly, a Court could only correct the document if rectification on the basis of mistake was established and it is therefore important that any party seeking rectification protects its claim by notice at the Land Registry to ensure no 3rd party proceeds in ignorance of it.