To mark three decades of the Property Litigation Association, we revisit eight cases that have redefined the contours of property law. These seminal judgments cover a broad range of issues, dealing not just with strict land law, but also matters of contractual construction and statutory interpretation with implications far beyond the property world. Junior property litigators should be aware of the issues these cases address from a technical perspective, but we also encourage our members to reflect on them as demonstrations of the national significance of the work that we do.
Manchester Airport plc v Dutton [1999] EWCA Civ 844; [2000] QB 133
With themes familiar to modern readers, the oldest case on our list centred around environmental protesters and their attempts to block development of a runway at Manchester Airport.
In 1998, Manchester Airport PLC was granted a licence over adjacent woodland in order to construct a second runway. Days before the licence was granted, , however, protesters occupied the land.
Manchester Airport brought an action in trespass to remove the protestors, but as the company had not yet taken occupation under the licence—and did not have any right to exclusive possession—the trespassers argued it had no standing to bring such a claim.
The Court, however, held that in certain circumstances, licensees can bring trespass claims. One must look to the substance, not the form, of the licence agreement. If a licensee has effective control of a site, it may bring a trespass claim. The Court went even further, holding that even if the licensee was not yet in occupation, it could bring a trespass claim if that is necessary to give effect to the contractual rights it enjoys over the site.
In a world of complex operator agreements, pop-up retail, and serviced offices, the lessons from this case still resonate.
Aston Cantlow Parochial Church Council v Wallbank [2003] UKHL 37
This case involved a dispute over chancel repair liability—a medieval duty to fund the repair of churches, often falling upon unsuspecting modern landowners, regardless of registration.
Despite the apparent unfairness, the House of Lords held the liability to be enforceable, resulting in a bill of approximately £100,000 for the Wallbanks, plus around £350,000 in legal costs. The Lords also held that the church council was not a public authority under the Human Rights Act, undermining the Wallbanks' argument that the liability breached their Article 1 right to peaceful enjoyment of property.
The case reinvigorated debate over ancient property rights and the reach of human rights law, sending shockwaves through conveyancing circles until legislative reform eventually curtailed such obligations.
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38
In this well-known case regarding a development agreement, the House of Lords affirmed that the construction of a document is determined by what a reasonable person, having all the background knowledge available to the parties, would have understood the parties to be using the language in the contract to mean. Courts can interpret agreements with their purpose in mind. Whilst pre-contract negotiations are prima facie not admissible as evidence when the Court is undertaking this exercise, there may be exceptional cases where ignoring those negotiations would prevent the Court from giving effect to what a reasonable person in the position of the parties would have taken those parties to have meant. Hence,pre-contract negotiations could in theory be potentially relevant background to help the Court construe the intention of the parties.
This case has implications far beyond the realms of our practice area, but is nonetheless crucial for property litigators, with those advising on joint venture agreements likely to find it of particular relevance.
K/S Victoria Street v House of Fraser (Stores Management) Ltd & Ors [2011] EWCA Civ 904
This decision dealt with the Landlord and Tenant (Covenants) Act 1995, specifically, sections 24 and 25, which operate to invalidate agreements which provide for guarantors to retain liability for breach of tenant covenants after assignment of a lease.
The Court of Appeal held that, on assignment of a lease, the original guarantor cannot guarantee the liabilities of the incoming tenant, despite any contractual arrangement to the contrary. However, it was possible for the original guarantor to provide a subguarantee or “GAGA”, guaranteeing the original tenant’s obligations under any AGA.
Arnold v Britton [2015] UKSC 36
Where a group of leaseholders entered into service charge provisions that were manifestly unfair, could the Court intervene to change the meaning of the clause? A star-studded bench, including Lords Neuberger, Sumption and Hughes, ruled that it could not. They laid down a fundamental principle of contractual interpretation: that commercial common sense cannot override the plain words of a contract.
If a clause is unclear, then the Courts might look to factors such as commercial common sense in interpreting its meaning (as seen in Persimmon Homes above), but here, where the ordinary meaning of the clause was obvious, the Court held that they could not interpret it differently to seek a fair outcome. This case emphasised the sanctity of plain wording over commercial fairness, with the message for drafters: clarity is not just helpful, it is decisive.
Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72
If something matters to you, put it in the lease. In another case on the construction of contracts, the Supreme Court laid down with clarity the test for implying terms into contracts.
When Marks & Spencer exercised a break clause, it sought repayment of rent paid in advance for the period after the break date, despite no clause to that effect being contained in the lease. When asked by Marks and Spencer to imply such a clause, the justices reaffirmed the strict, literal approach seen in Arnold v Brittain, and declined to do so.
Instead, they restated orthodox test for implication: business necessity and obviousness. The clause was not necessary for the lease to function as a commercial document, and so it could not be implied. This case was later invoked in Bank of New York Mellon v Cine-UK [2021] EWHC 1013, a critical COVID-19 era case, where pandemic-hit tenants argued for implied rent suspension provisions in the event that they could not use their premises for the purpose for which they were intended. Again, the court refused to rewrite tightly drafted agreements.
S Franses Ltd v The Cavendish Hotel (London) Ltd [2018] UKSC 62
No summary of key property cases would be complete without a 1954 Act case, and this landmark judgment is certainly the most consequential of recent years.
The question was simple: if a landlord's intention to redevelop is solely for the purpose of preventing the tenant from renewing its lease, is that valid intention to satisfy ground of opposition (f) under the 1954 Act?
The answer of the Supreme Court: an unequivocal no. The intention to redevelop must be unconditional, meaning that if the redevelopment would not proceed if the tenant left voluntarily, that is not valid intention. This greatly strengthened 1954 Act protections for tenants, preventing landlords from contriving redevelopment schemes purely as a means of securing possession.
Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760
And finally, a nod to an area of property law which is fraught with banana skins for landlords and their advisers: residential evictions.
We all know that service of a gas safety certificate is a necessary precursor to serving a section 21 eviction notice, but at what point must the certificate be provided? Whilst the certificate should be provided at the start of the tenancy, Rouncefield clarified that late compliance, so long as it predates the s.21 notice, is sufficient.
The ruling overturned previous decisions to the contrary, offering rare slack to landlords, whilst warning tenants that technical missteps won’t always defeat possession claims. With the impending abolition of section 21 evictions, the practical implications of this ruling will be diminished, but it still offers useful general guidance on the Courts' approach to proportionality when dealing with non-compliance with statutory pre-conditions.
We encourage our members to reflect on these decisions as they carry on their daily practice, and we at the JPLA look forward to another 30 years at the cutting edge of case law in the UK.