Property Litigation Case Alert


Lee v Courtenay Gate (6 June 2012)

A residential tenant of a block of flats unsuccessfully applied under s.84 (12) of the Law of Property Act 1925 to discharge or modify an absolute covenant against sub-letting of his flat. Under the Act, a tenant of a Lease for more than 40 years, of which 25 years have expired, can apply to the Upper Tribunal (Lands Chamber) to discharge or modify any restriction on use or alterations in the same way, and on the same basis, as an owner of freehold land can apply to discharge or modify a restrictive covenant. However, the Tribunal held that, although there were a few exceptions, there was still a clear scheme to retain such covenants in Leases to ensure flats remained owner occupied and the covenant should remain as it is as it is still of relevance and practical benefit.

CGIS Plaza v Britel Fund Trustees (13 June 2012)

A 1967 Conveyance which allowed development of land in Cannon St, Birmingham to interfere with rights to light to windows of a nearby building bound the new owner of the building as they were not personal even though th relevant part of the document referred to the previous owner and made no reference to successors in title. In addition, the Court considered that the grant of a right to build and infringe the rights of a nearby building was a covenant which bound successors on title.

Helmsley Acceptances v Ali (14 June 2012)

This is yet another case in which the Court had to construe a document to make commercial sense out of it. On the face of the document, the obligation of the Defendant to make a payment to the claimant and the release of the security held by the Claimant were mutually exclusive so that the Defendant was released even if no payment was made but the Court held that business common sense dictated that the obligations should be construed to be mutually dependent.

Giles v Tarry (21 June 2012)

Yet another right of way case (there are seemingly endless rights of way disputes) In this case, the rule in Harris v Flower which limits a right of way to use for the benefit only of the dominant land was applied with a twist. It was held that the Defendant could not use a right of way to take sheep into a field to take the sheep into that field and the next adjoining field even if he went out of a gate and entered the other field from other land.

Godiva Building Society v Khan & Keepers Legal LLP (27 June 2012)

Although the mortgagee had acted fraudulently in obtaining an advance from the Claimant, the solicitors were not liable for damages even though they had failed to make clear, as they should have done, that the mortgagee was not investing any funds herself. The Court held that the Claimant knew this was a family transaction and would have still proceeded and that the solicitors were not put on particular alert as they were never provided with the mortgage application so they did not know what the mortgagee had represented.

Jeffries v Robb (28 June 2012)

Guess what? Another right of way case. Although the Defendant had an express right of way for all purposes, the Court required that she had to use the right at reasonable speed so she could no longer harass the owners of the land by surveillance and snooping.

Jonathan Ross
Forsters LLP