Property case law update: March 2010

01 Mar 2010

Jayasinghe v Liyanage [2010] EWHC 265 (Ch)

C applied for registration of a restriction as the sole beneficiary of a resulting trust, arising from her provision of the original funds for the purchase. The deputy adjudicator to the Land Registry held a two day trial concluding that C’s evidence was unreliable and implausible and directing the removal of the her restriction. C appealed.

HELD: (1) The adjudicator has the power to hold a trial to resolve disputes about substantive rights. (2) The adjudicator had to resolve two issues: (a) whether the applicant had a relevant right or claim, and (b) whether the restriction was necessary or desirable to protect the applicant’s right. (3) There was no resulting trust where C had paid the previous mortgage but had been immediately reimbursed by the defendant.

UK Housing Alliance (North West) Ltd v Francis [2010] EWCA Civ 117

In 2007 D sold his property to C who leased it back to him on an AST. D challenged a clause that removed his right to the Final Payment of the purchase price if C terminated the tenancy pursuant to any right to do so in the tenancy within 10 years (“the Clause”). D said that he was entitled to the Final Payment as: (1) it was a deposit and so should have been protected under Chapter 4 of Part 6 of the Housing Act 2004; (2) the clause was a penalty and so void; and (3) it was an unfair term under the Unfair Terms in Consumer Contract Regulations 1999.

HELD:  (1) In order to be a protected deposit under the Housing Act 2004 money had to initially be paid by the tenant to the landlord and then repaid to the tenant. The Final Payment was therefore not a deposit because it had not been paid from D to C. (2) The Clause was not a penalty because it only removed a contingent right to payment and did not forfeit a proprietary right. (3) The Clause was not unfair because it did not create a significant imbalance between the parties and was not contrary to good faith.

R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11

The residents of a town applied to have an area of land forming part of a golf course registered as a town green under s. 15(1) of the Commons Act 2006. The application was refused because the residents using the disputed land would defer to members of the golf club when they encountered them, showing they did not use the land “as of right”. The residents appealed.

HELD: (1) When assessing whether user of disputed land is “as of right” the key issue is the character of the user and not the subjective intention of the people involved. While there is no general test of reasonableness in s. 15, it might be appropriate to ask how it would appear to a reasonable landowner. (2) In this case a reasonable landowner would have realised that any of the applicants’ motives was a more plausible explanation for their deference (or civility) than supposed unwillingness to go against a superior legal right.

Case summary by Andy Creer, Laura Tweedy, and Philip Fellows.


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