Land cases

Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. As such, it was held that the loom was a fixture. Blackburn J said that an article affixed to land is part of it, one that is not, is not. However, this can be rebuttable by contrary intention which can be found as underlying by degree - how much is the item fixed? - and purpose - why is it so? Therefore, any article not otherwise attached to the land than by their own weight, are not to be considered as part of it, unless circumstances can show that they were intended to be part, the onus of showing this lying on the person who claims that the fixture has ceased to be a chattel. Oppositely, something which is affixed to the land will be seen as part of it unless circumstances show that it was always intended to be a chattel, the onus of proving this lying on those who contend it is so.

Leigh v Taylor [1902]
Re Whaley [1908] - Both concerning tapestries -- were they affixed purely for enjoyment? If so, then they were not fixtures. The latter case concerned a number of tapestries that were hung in order to create the composite effect of an Elizabethan dwelling house, as such it was held that they were integral to the land and therefore classed as fixtures.

Berkley v Poulett [1977]
Hamp v Bygrave [1983] - Concerning garden statues -- as they were merely resting due to their own weight, they were not fixtures. In the latter case however they were held to be so, as they had been described as such in the sale by the vendor.

Chelsea Yacht & Boat Co. v Pope [2000] - Was the tenancy agreement of a houseboat a tenancy of a dwelling house? If a houseboat is moored, does it become such? The 'Dinty Moore' was moored to a pontoon by lines, and provided with water and drainage etc by plug-in or snap-on service connections. The boat could be moved without injury to itself or the land. CoA held that the houseboat was not part of land on which it is moored, as there was no permanence in the attachment and as such, the agreement was not a tenancy of a dwelling house as "a boat, albeit one used as a house, is not the same genus as a real property".

Elitestone v Morris [1997] - In a possession action, T claimed that he had tenancy of a dwelling house and was therefore protected under the Rent Acts. However, the tenancy agreement only extended to land on which T's bungalow stood, not the house itself. T had paid the previous occupant (and not the landlord) £250 for the building, which rested on conrete pillars and was not affixed to the ground. As such, using the degree of annexation, the onus was on T to prove that the house was attached to the land and therefore a dwelling. It was held that the act of bringing individual parts of the house onto the site meant that the fact it was not actually attached to the ground was negated. It was compared to a case of stones in a builders yard (not fixtures) vs. those same stones in a drystone wall (fixtures). As the building could not be moved without demolition, it was held to be 'part and parcel' of the land. HoL held that what isof primary importance is the intention involved. It was indicated that this is an objective test to determine whether the object was intended for the use or enjoyment of the land, or for the more convenient use of the object itself. As it was the former, the landlord failed.

Lord Bernstein of Leigh v Skyviews & General Ltd [1978] - S overflew B's estate and took photos which they then offered to sell to B. B, having told them not to do this before, then sued, claiming airspace trespass. Griffiths J held that that the owner's rights were to be restricted to such heights as was necessary for the ordinary use and enjoyment of his land and the structures upon it.

Kelsen v Imperial Tobacco Co. Ltd [1957] - An advertising sign projected over K's property.

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] - A crane jib kept swinging over the neighbouring property during the development of the defendant's site.

Walsh v Lonsdale [1882] - L agreed to grant Y a lease of a mill for seven years. The rent (£810 p/a) was to be paid in advance. Although the lease was in writing, there was no deed. T failed to pay the rent as agreed, so L "levied distress" (seized T's property as payment). T contended L's actions as unlawful, seeing as the lack of a deed had rendered the tenancy agreement unenforceable (L actually had no backing for distress as the lease was worthless). CoA said that the rules of equity prevailed:
1. Equity looks on that which ought to have been done, as done
2. Looking at the relationship of the parties, and what if they had done what they ought to - substance over form
3. Equity would therefore give effect to the parties' intention in the written agreement
Whilst this could not be a legal lease between the two parties due to the lack of the deed, in Equity it could become an equitable lease. This was then accepted by the common law courts, even though it was not common law in itself as it was not 'isnged, sealed and delivered'. Here the ruling was in favour of L, as T could not complain of L's exercising his rights as if he would have had, had a lease actually been granted.

Caunce v Caunce [1969] - Wife's occupation was entirely consistent with the husband's ownership, so the bank was not 'put on notice' - i.e. was the bank aware of the wife's equitable interest and what was it reasonable to expect the bank to do? It was not reasonable to expect bank in these circumstances to inspect the land and ask questions of wife - the bank did not have constructive notice, and simply being aware of the wife in the home did not negative the title the husband was offering because there was no immediate link to the wife's equitable interest.

Williams & Glyns Bank Ltd v Boland [1981] - A husband held a property on trust for ihs wife. He mortgaged the property to the bank without asking her permission, and without the bank knowing about her. He then defaulted on the mortgage payments, and the bank tried to claim the property. The wife then said that she had been in occupation, and therefore she had an overriding interest. HoL said that she did have one which could bind the bank's registered charge. Banks should be under a stricter duty to inspect and enquire. "The presence of the vendor, with occupation, does not exclude the possibility of occupation of others". They can also protect themselves by overreaching.
Mortgagee who deals with a single trustee does not overreach the beneficiary's interest. As such, they are bound by virtue of LRA 1925, s.70(1)(g), or now LRA 2002, sch. 3, p.2.

Kingsnorth Finance Ltd v Tizard [1986] - The bank failed to follow up the husband's inconsistent replies (he had told them that he had just separated from his wife, so they had constructive notice) and the inspection they arranged of the property was insufficient. As such, the bank was bound by the wife's interest in the matrimonial home. She would have been regarded as having an equitable interest, and also in actual occupation under sched.3(2). However, how are banks supposed to 'reasonably inspect' a property without being intrusive?

Tulk v Moxhay [1848] - A purchaser of land burdened by a covenant restricting the use to which the land could be put, was bound by that covenant in so far as it touched and concerned the land and the purchaser had notice of it.

ER Ives Investment Ltd v High [1967] - H and X were neighbouring freehold owners of unregistered land. X constructed a block of flats whose foundations marginally encroached upon H's land. H did not sue for trespass because it was granted in writing that he had a right of way for his car over X's land. H had never registered this equitable easement, but subsequently built garage on own land that was accessible only from X's land. X later sold his land to I, who knew everything and therefore was expressly subject to H's right of way. Held that H could enforce this against I as he was estopped because of acquiescing to H's expenditure on the land and not enquiring of either X or H as to the situation.

Ministry of Housing and Local Government v Sharp [1970] - S was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate certificate to a prospective purchaser of land, omitting any reference to a claim to reimbursement of compensation which the Ministry had against the seller. The result was to extinguish the right which the Ministry would otherwise have had to pursue its claim against the purchaser. It was conceded that, if the clerk was liable in negligence to the Ministry, then the council was vicariously liable for its clerk. Held that the clerk was liable. The Court rejected the argument that a voluntary assumption of responsibility was the sole criterion for imposing a duty of care for the negligent preparation of a search certificate in the local land charges register.

Midland Bank Trust Co Ltd v Green [1980] - Walter married Evelyn and had two songs - Geoffrey and Derek - and two daughters. W owned two farms - one, Thoresway, he sold to D at £75 per acre, and the second, Gravel Hill, he optioned to G for the next 10 years (until 1971). G could at any time call for the land to be conveyed to him, provisional on him providing the money (a registrable estate contract). The option was registrable as a Class C estate contract. However, G forgot to register it against W's name, and in the interrim there was a family feud. In 1967, W conveyed (fee simple absolute in possession) GH to E for £500 total. G then claimed his right to exercise the option and sued W for damages in breach of contract, E as the new owner of GH for specific performance of the option and both W and E for damages in the tort of conspiracy.
However, W is now not worth suing because he has sold his assets; G really wants specific performance to get GH, but E had not actually broken the option. By 1980 (delayed by HoL litigation) GH was worth over 1/2 a million pounds and the price payable by G under the option was only £250,000. The court of first instance found for E, this was then reversed in favour of G by the CoA as E was not a purchaser for money, or money's worth as she had not given an adequate sum. As such, the Land Charges Act, s.4(6) was activated. The fact that E and W had supposedly been fraudulent unravelled everything, and as E had been party with W to the fraud on G, she could not benefit from it.
However, the HoL found for E as she was a purchaser of legal estate in GH, she had given money. LCA s.4(6) was activated and the option was void against E. It was wrong to read 'good faith' into the statutes. G then sued his solicitors as they had been negligent in failing to advise him to enter the option. He received a remedy of damages in the tort of negligence as he had sustained loss as a result.

Loke Yew v Port Swettenham Rubber Co Ltd [1913] - P who induces an interest holder, G, not to register by undertaking that P would respect G's (unregistered) property rights. Held P had more than mere knowledge of G's interest, because it falsely and fraudulently agreed not to disturb G as an inducement for P to sign the transfer. The court was satisfied that there was a deliberate plan by the company to deprive G of his interest. P gave a false inducement to the vendor to sell the land. This amounted to more than merely having notice of G's interest. The court ordered P to transfer the land occupied by G to him.

Jones v Lipman [1962] - V sells land to P in circumstances were P is entirely controlled by V (P is a company owned by V) so it is a separate legal entity. This is not alright if it is run by just one individual. Similar to MIDLAND BANK - was E controlled by W? No, because E was an autonomous individual. performance he transferred his property to a company. Held that the company here was "a mask which (V) holds before his face in an attempt to avoid recognition by the eye of equity" - specific performance was awarded against both P and V.

Webb v Pollmount Ltd [1966] - L granted to Webb a legal lease to last for seven years, the lease was overriding under s. 70(1)(k). The lease also granted to Webb an option to purchasethe fee simple reversion. No notice or caution was entered on the register to protect Webb's option. The fee simple was sold to Pollmount Ltd, who claimed that theoption was not binding on it. It was held that Webb was actually occupying the leased property at the time of the sale. Therefore his option was an overriding interest within s. 70(1)(g).

Ellis v Lambeth Borough Council [1999] - E was squatting in a house in Brixton. Eventually he managed to adversely possess the property which was worth £200,000. The fact that it was an organised squat in which E 'vetted' the other people who wanted to come and live there worked in his favour.

Rosenberg v Cook [1881] - An adverse possessor is awarded a fee simple on the very first day of his possessing.

Amory v Delamirie [1722] - A found a jewel in the chimney of someone's house, and took it to B to have it valued, who then refused to give it back to A as he said it wasn't his. However, once you take property into your possession, it is yours.

Asher v Whitlock [1865] - "Possession is good title against all but the true owner".

Tower Hamlets London Borough Council v Barrett [2006] - X rents a house and notices that next door's garden is not used, so they begin to take care of it. 10-12 years pass, so does X now have the right, or is it the landlord's? The landlord receives the right because X is possessing on their behalf.

Re Atkinson and Horsell's Contract [1912] - "Whenever you find a person in possession of property, that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute once you have extinguished the right of every other person to challenge it".

Powell v McFarlane [1977] - A boy started grazing his cow in a neighbouring field; he also did some other small repairs, but mainly it was for grazing. CoA said that this was not adverse possession - however, had the boy's intent to possess been stronger, it might've been. "In the absence of evidence to the contrary, owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner, or to persons who can establish a title as claiming through the paper owner (buyers).

Buckinghamshire County Council v Moran [1990] - BCC wanted to use a field to divert a road around a housing estate. X owned land next to this field and began to use BCC's land for planting bulbs and other things. His successor, M, installed a lock and chain which rendered it only accessible from his own land. Both were aware that BCC had plans for future use. M wanted to argue that they had had adverse possession, and ideally for as long as possible. He could do this if he could prove that he had dispossessed BCC - it was held that it wasn't discontinuance, as BCC had had plans to do something with the land.

JA Pye (Oxford) Ltd v Graham [2003] - Claimant property developer bought a piece of land for future development; in the meantime the company gave permission in writing for the defendant to use it in the interrim for grazing and cutting hay. When the period of the permission expired, D sought renewed permission, but these requests were never answered. Eventually C sought possession in a court action. They failed at first instance, but succeeded in in CoA, which held that the D saw themselves as licencees, not adverse possessors. They did not have the requisite animus possidendi, 'intention to possess', to establish adverse possession. The HoL, however, rejected this argument. D had used the land for grazing, put a fence up and put a lock on a gate. A surveyor also claimed that the land could not have been used any other way. 'Intention to possess' meant an intention to enter into, and enjoy the benefits of, the land, not an intention to obtain land by adverse possesion. In this case the defendants clearly intended to work the land to their benefit, and the fact that they would have been willing to pay rent had it been asked was not fatal to their position.

Red House Farms v Catchpole [1977] - The disputed piece of land was next to the owners' own land, and separated from the squatter's by a river. Over time the river separated the land from the owner and attached it to the squatter's. It was a very marshy area, and all the squatter did was shoot over it, but this was deemed enough for adverse possession.

Prudential Assurance Co Ltd v Waterloo Real Estate [1999] - This concerned a length of party (boundary) wall about 22ft long and 15ft high. The CoA found that D had acquired ownership of C's half of this wall because amongst other things they (or their predecessors) had repaired and decorated it, removed graffiti, put up external lighting, cut an opening in it and installed a night safe. The 'real' owners had remained oblivious to this.

Williams v Usherwood [1983] - S claimed AP over O's land as he had crazy paved it and parked his car on it. He did this whilst honestly thinking it was his - here it was ruled to be adverse possession.

Paveledes v Ryesbridge Properties Ltd [1989] - S was a factory on a piece of industrial land which had its own car park. Next to this was other land belonging to O which the workers began to park on. The land was many acres, and as only a small part had been used by the workers, it was ruled as not adverse possession.

Tennant v Adamczyk [2005] - S started turning their cars and lorries around using O's land - ruled not adverse possession. Even though S claimed they had planted a vine on the land, this was still not enough.

Hounslow London Borough Council v Minchinton [1997] - S had extended the end of his own garden into his neighbours by weeding etc. This was ruled as adverse possession as it was sensible use of the land. S had not only cultivated the garden, but also put up a fence to keep his dog in. Millet LJ saw this as having two purposes - for keeping his dog in, and excluding others.

Inglewood v Baker [2002] - Courts have sometimes claimed that fences are to 'keep animals in' and not for 'keeping people out'.

Carroll v Manek and Bank of India [1999] - Concerning a hotel in London whose O had gone to prison; his manager lived in the property and tried to claim adverse possession of the room he stayed in. When this failed, he then tried to claim for other areas, such as the fact that he had charged people a fee to use the car park.

Roberts v Swangrove Estates Ltd and others [2008] - R bought up a number of heraldry titles; the Forestry Commission (under the Crown) could adversely possess in 12 years (it is only when it is against the Crown that it is 30 years).

Fairweather v Marylebone [1963] - Even after a tenant's title has been extinguished by the Limitation Act, he can still go to the landlord and officially hand over the lease, so in that sense the squatter's adverse possession clock is restarted.

Ghaidan v Godin-Mendoza [2004] - A case concerning a private tenancy relationship where the tenant was homosexual and had a partner. The law allows the partner of a tenant in marriage or a heterosexual partner to inherit the license if the tenant dies. When the tenant did die, the partner argued Article 8 and 14 which prohibits discrimination. It was held that when 8 and 14 are combined there was a breach of his property rights. As a remedy, the courts used their powers to read the statute so that it also covered homosexual couples.

Kay v Lambeth [2006] - A legal case involving claims for possession by LLBC against a "group of former short-life occupiers". The ruling, which was in the plaintiff's favour, in effect stated that homeless individuals who have been granted a sub-licence allowing them to occupy accommodation temporarily passed to a housing trust by a local authority, do not, as a result become secured tenants of the local authority. In the House of Lords, it was held by Lord Bingham that the European Court accorded a generous margin of appreciation to the national authorities, attaching much importance to the facts of the case. Thus, it was for the courts to decide how in the first instance the principles expounded in Strasbourg should be applied in the special context of national legislation, practice and social and other considerations. To those decisions the ordinary rules of precedent should apply.
Leeds County Council v Price [2006] - Gypsies had been on council ground for two days; HoL held that it was not their home sa there were no sufficient and continuous links to the area. Article 8 was not engaged.

- The strict immunity approach of HARROW could not apply after CONNORS. However, it would be inconvenient if every case brought by an LA to a county court could plead Article 8. As such, one should consider English law compatible with Article 8, and the latter could be raised only in seriously arguable cases. Nonetheless, there is a disagreement as to what constitutes this. Majority say that a defendant is allowed to argue that Article 8 is incompatible with the legal rules of the eviction, whilst the minority say that the defendant is allowed to point out the hardship to themselves. Still, both are very restrictive in terms of the leeway Article 8 has to interfer with property law.

Holy Monasteries v Greece [1994] - HM had owned a lot of land in G, but G then passed a statute saying that if there was no entitlement to the property, then it would belong to G. As HM had owned it for so long, this was difficult to prove, but the statute was unlawful.

Aston Cantlow v Wallbank [2003] - 'Chancell repair liability': church has property rights over lots of land in the area and as such, when it wants money for repairs it can go to those properties in the land and demand money. C claimed that their property rights had been infringed, however it transpired that they had bought their property knowing of this right, and as such they had to pay as there was an inherent flaw in their right to their property.

Beaulane Properties v Palmer [2006] - Mr Palmer had been grazing horses in a field (green belt land near to Heathrow Airport) for many years, initially under licence. The licence expired in 1986. The Judge held that time started to run against Beaulane Properties Limited in June 1991 and had expired in June 2003, after the commencement of the Human Rights Act 1998 (“HRA”) but before the commencement of the Land Registration Act 2002 (“LRA 2002”). The question of the impact of the HRA on the interpretation and application of the meaning and application of the Limitation Act 1980 (“LA 1980”) was therefore squarely raised. It was held that:
- That Article 1 of the First Protocol was "engaged" because the practical effect of section 75 of the LRA 1925, and section 17 of the LA 1980, was to deprive the owner of his land.
- That a system of law under which the owner could be deprived of his land without compensation as a result of mere inadvertence was disproportionate interference, which could not be justified by reference to any public interest.
- That the loss of Beaulane's land was therefore incompatible with Article 1.
- That the effect of section 3 of the HRA was to require the statutes to be read and given effect to in a way, which was compatible with Article 1.
- That the statutes were to be read as applying only to those cases in which the trespasser established "possession" in accordance with the case law in 1925; but since the use of the land by Mr Palmer had not been inconsistent with the intentions of Beaulane for it, his possession had not been adverse.
- Alternatively, it might be possible to reinterpret the Acts as not precluding the owner from suing in trespass for damages for (a) 12 years' occupation and (b) the loss of his land.

Ofulue v Bossert [2008] - B acquired property belonging to O by virtue of adverse possession as they had been squatters there for 22 years, of which O was aware. B had offered to buy property from O but had been refused. In an appeal referral from the County Court, the CoA held that B had acquired legal title to the property by these means in that O had done little to remove them. B had gained 'factual possession' and showed 'intent to possess'.

Harrow London Borough Council v Qazi [2003] - HLBC wanted to evict a former tenant who had lived there for a long time with his wife. Q and his wife fell out and she quitted the tenancy (only takes one person even though there were two people living there). Q argued Article 8 when HLBC tried to evict him. Bingham and Steyn said that Q's argument had merit, and that it should be sent back to a lower court for a proportionality test. However, Hope, Millett and Scott said that it was a non-starter as when an LA has contractual or proprietary rights, Article 8 cannot defeat this - property law is more important.

Connors v United Kingdom [2005] - Gypsies were living on land with a LA's permission, but as they were acting antisocially, their license was terminated. The rules and conditions of the license stated that this could be done without reason or without giving them a chance to respond. Under domestic law, the LA won. However, the ECtHR said that there had been a violation of the gypsies' Article 8 rights as they were a vulnerable minority - as such, property law was no longer immune from attack by the ECHR/HRA.

McCann v United Kingdom [2008] - A LA used a fast-track procedure to get rid of a tenant. ECtHR held that the tenant must be able to raise Article 8 in repossession proceedings, so this was a criticism of KAY. Also, the Court held that there had been a procedural incompatibility with Article 8 as a violation of the tenant's rights, which attacked Gateway 1.

Doherty v Birmingham County Council [2008] - Another gypsy case very similar to CONNORS. By the time it reached the HoL, the law that had applied in CONNORS had changed, meaning that English law was now compatible, but at the time of the eviction it had not been. As such, even though it was incompatible at the time, it was now alright, so there was no action that could be taken. HoL said that as long as an LA was acting within a statute, then there was nothing the courts could do, aside from issue a declaration of incompatibility.
MCCANN was avoided by the HoL saying that the ECtHR hadn't heard any oral arguments on the case - they were all presented on paper. They also claimed that the ECtHR had ignored the practical difficult they would suffer if Article 8 could be raised in any case. Also, this case had had 5 judges, whereas KAY had had 7, so they were bound by their prior decision. As such, the current authority is DOHERTY, and the best remedy would be a declaration of incompatibility.

Barca v Mears [2004] - A property was owned by a bankrupt man who lived there with his family. The bank and other creditors wanted to sell it, but he said that it was he and his family's home. First instance judge said that there was no breach of Article 8 in the bank and creditors' desires, and ordered the sale of the co-owened property, but in the future we need to keep our minds open to Article 8's impact.

Horsham Properties Group Ltd v Clark [2008] - A bank had a charge over a home. The mortgage payments were not kept up so the bank sought to repossess it and sell, and the owner claimed it was a breach of Article 1. However, this was never even engaged, as the owner had agreed to have his property subject to the bank's interest. As such, the sale by the mortgagee was compatible.

CIN Properties Ltd v Rawlins [1995] - A privately owned shopping mall banned some rowdy youths. In the first instance, the judge held that they had had an equitable property right to be there, but this was overturned in the CoA who said that the private owner was at liberty to keep them away. The counter-argument was whether the private owner of such an area could actually ban people. On claiming in the ECtHR, it was found that their freedom of movement had been impinged upon, but as the UK were not signed up to this, there was no right.

Porter v Commissioner of Police of the Metropolis [1999] - Some obiter about whether the law may have to become more flexible in the future.

Appleby v United Kingdom [2003] - Some campaigners wanted to save the local recreation ground, so they set up a stand in a shopping centre, so which the owner objected. They went to the ECtHR concerning their Article 10 and 11 rights. It was held that sometimes a State may be under a positive obligation to stop people's rights of association, especially on private property, but here there was no infringement, as they could have just moved their stand outside.

Paddington Building Society v Mendelsohn [1985] - S purchased registered title in own name, with purchase money provided by mother M and mortgage by PBS. M claimed that her beneficial interest in the implied trust, plus her actual occupation of the property gave her interest which overrode the interests of PBS. CoA held that since M both knew and intended at the date of purchase that PBS would have an interest, M had impliedly conceded priority to PBS and thus was estopped from claiming.

Woolwich Building Society v Dickman [1996] - The Rent Acts protected a tenant who was unable to waive priority. In a protected tenancy, the purchaser wants the interest to be protected at all costs so that rights cannot be waived.

Halifax PLC v Curry Popeck [2008] - A husband and wife acted fraudulently in order to defeat bank charges. They transferred money to each other then fictionalised bank charges. However, if the transfer is fraudulent and consideration is meaningless, s.29 is not triggered.

Lloyds Bank v Rosset [1989] - Husband's mortgage triggered s.29. CoA said that the wife had a beneficial interest under a constructive trust and actual occupation at the relevant time - normally you would have to be living there, but as it was semi-derelict, they said that she was doing enough to have actual occupation (she had been cleaning, painting and helping to renovate it). However, HoL said that she did not have any interest, but they did not challenge her actual occupation. She had no interest because evidence was present to the contrary due to her knowing about the conditions of the money from the Swiss account. None of her contributions were financial.

Kling v Keston [1984] - A owned a garage and X had a right of pre-emption over it (meaning that X had first claim to it if A ever sold it). A then transferred the garage on a 99 year lease to B who registered it. X then sought to exercise his right, but he had not registered it, so he fell back on sched.3(2). He claimed actual occupation because his car had been parked in the garage. The judge said that even if the car had been out at the relevant moment in time (of the registration) actual occupation would still have existed. This case was very much from the third parties' point of view.

Abbey National v Cann [1991] - C was moving out of the country at the relevant time, but her son was moving in her furniture at the critical time. This had been happening for 30 minutes before the disposition. HoL said that this was not enough, as these were merely preparatory actions, not actual occupation. A bank's overreaching capability is not bound where a mortgage has funded the acquisition of the legal title.

Chhokar v Chhokar [1984] - Similar facts to BOLAND. A husband and wife went to India where the wife was abandoned. The husband then returned to England by borrowing money from her family. However, she was eventually able to return; she was also pregnant at the time. When she went to hospital to deliver the baby, without telling her, her husband sold their property and the buyer tried to evict the wife when she returned. The Court held that she had been in actual occupation at the time of the disposition, so a temporary absence does not defeat it.

Strand Securities Ltd v Caswell [1965] - A court held that a daughter living in her father's house was living there for her benefit, not his.

Lloyd v Dugdale [2002] - A manager of a company occupied some land in his capacity as the managing director of the company. X had an interest in the property and the manager needed to show actual occupation to keep it. However, he was only there because of his capacity as director, not for his own personal needs. The Court held that he was there as a company representative, not an individual.

City of London Building Society v Flegg [1988] - Husband and wife X were the legal owners of a house, in which they lived with husband and wife F, X's daughter. X were the joint tenants in law, and this was shared in equity with F as tenants in common. F had paid half of the purchase price and now occupied with them. However, express declaration did not bind them as they were not party to the contract. X mortgaged their property several times and failed to keep up the payments. F's argument was that they were in a trust and had actual occupation, but the bank claimed they were overreached. HoL said that you applied overreaching first, and as such, any interests of trust are compounded in the monetary interests and swept off the land, meaning that the bank won.
Different from BOLAND in that there was only one trustee (the 'crack in the mirror'). In FLEGG, the mirror and curtain principle are maintained when overreaching takes place, as the bank does not have to be concerned with trust interests that they cannot see.
Regarding GOODMAN, FLEGG said that if a person is not a party to the transfer containing declaration (i.e. they may have contributed money, but have not signed the contract), then they are not bound by it, and as such can go behind express words of transfer.

Peffer v Rigg [1977] - This was dealt with under the LRA 1925. P and R shared a mother-in-law and bought a house between them for her to live in. P had an equitable right under a trust as R was the legal owner. R's marriage broke down so he transferred the right to Mrs R for £1. However, now Mrs R had taken free of P's interest as she was a registered disponee with valuable consideration. Nonetheless, the Court said that £1 was not, and that she had not acted in good faith (she knew of P's right), therefore she was still subject to P. The statute said nothing about this, so this was an addition to the law.

Ashburn Anstalt v Arnold [1989] - X had a license (a personal right which therefore did not bind the parties) over A's property, which under the first three stages did not bind B. However, B orally agreed to accept X's rights - was B now under a fresh obligation? The court of first instance said no, but the CoA said that if in addition to making this statement, if B had agreed with A to pay a lower price for the property for abiding by the right, then this would be unconscionable conduct.

Hickman v Peacey [1945] - In a commorientes situation, even if there was no 'uncertainty' over the deaths, you still have to apply s.184, even if you knew that they died simultaneously. There has to be a 'tie-break' measure.

Goodman v Gallant [1986] - There was a joint purchase of a house by C and D, with an express declaration that the property would be held on trust for them as joint tenants. However, litigation commenced concerning their respective shares in the property, and C 'severed' their joint tenancy, turning it into a tenancy in common. She then claimed 3/4 of the value of the house (representing her contribution to its purchase). However, you can't have tenants in common in law, so any sort of severance merely turns a joint tenant into a purely equitable interest. CoA said that the declaration of trust was conclusive to the nature and extent of the parties' beneficial interests, and they were joint tenants in equity as well as law. The inevitable result of severance of the joint tenancy was to render them tenants in common in equal shares. Therefore, C's argument failed as the proceeds of the sale should still be split equally.

Carlton v Goodman [2002] - A and B (a couple) had bought property together (with a conveyancing surveyor assisting) but they had still made no declaration about their beneficial interests. Ward LJ explains the importance of making an express declaration of beneficial entitlement in the conveyance of transfer, as you should always try to agree on and then record how the beneficial interest is to be held.

Stack v Dowden [2007] - In 1975, S and D entered a relationship, and in 1983, D purchased a house by herself. A decade later S and D purchased a house jointly, with S contributing approximately 35% of the monies, and D 65%. There was no express declaration of trust, although there was one saying that the survivor of the legal joint tenants "can give a receipt for capital money arising on a disposition of the land" (This was held to not comprise an express declaration of a beneficial joint tenancy, as it is equivocal. The transferees may hold on trust for a third party, or they may intend that while the survivor can give a good title to a third party without appointing a new trustee, the capital moneys received should be subject to different trusts.)
It was agreed that S would be excluded from the property and D and the children would remain in occupation. There was a consent order executing this and requiring D to pay £900 per month to S. The order expired in January 2004, but D never paid any of these payments. Should S have received an occupation rent from D? HoL said that D was not required to pay this. As S had agreed to go, the home was needed for children and the house was to be sold as soon as possible. However, Neuberger dissented saying that the fact that the house was to be sold was irrelevent. The fact was that S had not been excluded for his behaviour, therefore D needed to pay him for the interrim in which he had nowhere to live. "Reasonably accepting exclusion as the norm would make it more difficult to claim compensation, and put a premium on unreasonableness whilst encouraging litigation".

Mortgage Corporation v Shaire [2001] - S and F were joint legal owners of a property, but S had 75% of it due to her financial contributions. F went behind her back, forged her signature and obtained a mortgage. However, under severance this only bound F. Still, the mortgagor now had an interest in the property, and sought sale. S opposed this under s.14; Neuberger said that the LPA 1925, s.30 had been changed by TLATA. However, the interests of the mortgagor were no less/more important than any other interests, so he said that there was a bit more in favour of families over banks.

Bank of Ireland Home Mortgages Ltd v Bell [2001] - Facts not dissimilar to SHAIRE. However here the wife's beneficial interest was maximum 10%, and the mortgage debt was already worth more than the property so that if the bank was not refunded they would be out of pocket. CoA said that it was a powerful consideration for proper recompense to the creditor, especially if it was overdue.

First National Bank v Achampong [2003] - A delay is not prejudicial if the beneficiary is allowed to remain in the property.

White v White [2003] - Two unmarried parties, the father had two children living with him and opposed the mother's s.14 application for sale of the house. He cross-applied for outright transfer of the property to him. On the intentions point, the CoA said that at the time they had been in shared occupation, they had had no children, so the intention could not have been a family home. However, under s.15(1)(c), the interests of the minors should be considered.

Edwards v Lloyds TSB Bank plc [2004] - Postponement of sale justifiable where the person's security is adequate to cover the increasing amount of debt.

Midland Bank v Cooke - A house was purchased as a family home and conveyed into the husband's name. The wife's parents contributed £1000 towards it and the remainder was provided by the husband, and a mortgage. However, the husband took out a second mortgage, procuring the wife's consent by undue influence. The court of first instance evaluated the beneficial entitlement by financial contributions. As the wife's parents £1000 had been a gift to the couple, the wife was said to have given £500 which amounted to 6.47% of the total amount - hence that was how much she had in equity. However, the CoA said that there was no express evidence of intention, and therefore there should be an undertaking to survey the whole course of dealing relevant to their ownership and occupation. Once they had taken into consideration all conduct which threw light on what shares were intended, they said that the presumed intention was that the beneficial interest would be shared equally.

Fowler v Barron [2008] - Opposite sex cohabitants with two children purchased a house in 1988 and registered it in their joint names. The man made all the financial contributions, whilst the woman looked after the children. The judge held (prior to STACK) that in view of their respective financial contributions, that the man was the sole beneficial owner (resulting trust). However, the CoA followed STACK in that the presumption of joint beneficial ownership was not rebutted by the man's financial contributions, but that the house was held by the both of them on trust for themselves as tenants in common with equal shares. This acknowledged policy in that it is accepting that the unpaid work of women in childcare is important.

Holman v Howes [2007] - A single legal owner held on trust for himself and the claimant (ex-wife) in equal shares where they had made roughly equal financial contributions. The presumption was rebutted, and it was held that the man held the property on trust for himself and the claimant in equal shares as it reflected their financial contribution.

James v Thomas [2007] - The defendent never indicated that the claimant should have a beneficial interest.

Laskar v Laskar [2008] - A mother and daughter purchased a house together under their joint names, but contributing unequal financial amounts. The mother had been a secure tenant who was now exercising the right to buy. They never lived there together, or intended to - it was let out to tenants. The court in the first instance held that pursuant to a resulting trust, the house was held in trust based on their financial shares (the mother had contributed 95%). However, post-STACK, the daughter thought she still had a case. Nonetheless, the CoA said that as the house was purchased as an investment, STACK did not apply and was therefore not relevant. As such, in the lack of any discussions about shares, the reliance is to fall back on financial contributions (resulting trusts). Still, it was found that the first instance judge had failed to take into account liability assumed by the daughter under a mortgage, so her share was increased to 33%.

Kinch v Bullard [1999] - A terminally ill woman sent notice to her husband by first class post to the matrimonial home. As this had not been sent by registered post, this did not fall under s.196(4). However, before it arrived, the husband suffered a heart attack. When it did finally come, the wife destroyed it. As the husband had died before the wife, she stood to get survivorship if she was still in joint tenancy. However, the husband's estate did not want this to happen. Neuberger said that the joint tenancy had been severed by her notice, as it had been effectively served under s.196 by arriving at the husband's last fixed place of abode, no matter in what form or way. It was irrelevent that the husband did not physically receive the notice, or that the wife had changed her mind. He did tentatively suggest that if the wife had informed the husband she intended to revoke the notice, the situation might have been different.

Harris v Goddard [1983] - A wife served a divorce petition on her husband seeking that such an order may be made by way of transfer/settlement of their property. However, the CoA held that this did not sever a joint tenancy, and therefore the wife took survivorship. Lawton LJ said that "a notice in writing which expresses a desire to bring about the wanted result at some time in the future is not a notice in writing under s.36(2)".

Burgess v Rawnsley [1975] - H and R jointly purchased a house for £850. H was to live in the lower flat, and R in the upper. There was an express declaration that they held on trust (for sale) for themselves as joint tenants. R paid over £425 but never moved in. There were discussions about H buying out R's share between H and his solicitors, that eventually seemed to settle on R agreeing to £750, but R refused to sell. H died and R claimed survivorship. However, H's estate resisted as they claimed there had been a severance before his death. Had beneficial joint tenancy been severed in the course of negotiations or not?
The county court said that there had been severance by mutual agreement is one was to believe what H had told his solicitors. The judge favoured this over R's argument. The CoA uphold this decision on the basis that severance by mutual agreement had occurred, and it was immaterial that such an agreement was not specifically enforceable.

Greenfield v Greenfield [1979] - A physical division of property (i.e. into maisonettes) is not enough in itself to comprise a mutual agreement or course of dealing.

Hunter v Babbage [1994]
Edwards v Hastings [1996] - Where divorcing spouses have reached an agreement which involved severance of their interests in the home, it was immaterial (no consent order having been made) that it was unenforceable at the time of the husband's death.

Pudner v Pudner [2006] - Where parties had executed mutual wills, these indicate an agreement and provide evidence of an intention to sever that would not be found in just a single will.

Re Pavlou [1993] - The family home was in the joint names of the husband and wife. The marriage broke down and the husband left the home. The wife met all the mortgage payments thereafter and the husband was subsequently adjudicated bankrupt. The wife sought credit for the mortgage capital and interest repayments. The court held that the wife was entitled to credit for one half of the capital repayments made by her since she became solely responsible for the mortgage payments and not merely from the date of the bankruptcy order.

Chan Pui Chun v Leung Kam Ho [2003] - Was it suitable for half of a divorced couple to remain living in a jointly owned house? One must consider factors such as if a house is unsuitable for someone regarding size and maintainance, even if they have a right to remain there.

Barca v Mears [2004] - In 1995, B was declared bankrupt and M was appointed his trustee in bankruptcy. The trustee in bankruptcy applied to the court for a declaration that he had an absolute beneficial interest in B's property and sought an order for possession and sale.
The main issue that arose in the case concerned whether the court should make an order under section 335A Insolvency Act 1986. B alleged that his son spent over half the week in the property, and if it were sold this would cause the child considerable hardship. It would disrupt the child, particularly as he was a special needs pupil. B said these reasons amounted to exceptional circumstances for the purposes of section 335A. Case law indicates that substantial postponement has been allowed in cases where the bankrupt or the bankrupt's spouse was terminally ill or very seriously ill. Re Citro [1991] Ch 142 seems to indicate that the circumstances must be inherently unusual. The child's problems in this case could not be said to come within this requirement.
B also claimed that the lower court had failed to take into account his or his son's right to family life, home and privacy and that the principles of insolvency law were contrary to the concept of fundamental freedoms and rights. Strauss J said that a shift in the emphasis in the interpretation of section 335A might be necessary for it to be compatible with the European Convention of Human Rights. He avoided reaching a conclusion on the issue however and said that the decision of the lower court was correct. The prejudice to B's creditors would be substantial if the order for sale were postponed and the son's educational problems were not severe.

Donohoe v Ingram [2006] - The appellant and her partner were in a relationship between 1982 and 1999, and they had four young children. In October 1996, they bought a property as joint proprietors, and occupied it as their home. In March 2000, the appellant's partner was declared bankrupt; the couple separated in July 2001; and, in May 2004, the respondent to this appeal was appointed as the trustee in bankruptcy.
In June 2005, the respondent applied for an order for sale of the property under section 335A of the Insolvency Act 1986 (inserted by the Trusts of Land and Appointment of Trustees Act 1996), and the district judge ordered the sale with vacant possession. The appellant applied for the order for sale made by the district judge to be set aside and substituted by an order for sale, not to take place until 2017, when her youngest child would attain the age of 16. The only issue which arose on this appeal was whether the district judge was correct in deciding that the circumstances were not 'exceptional' within the meaning of section 335A(3).
The judge considered the Court of Appeal decision in In Re Citro [1991] Ch 142, the leading authority on the meaning of 'exceptional' in this context, and Nourse LJ's interpretation in that case of In Re Holliday [1981] Ch 405. The appellant contended that the present case was materially indistinguishable from In Re Holliday and the district judge was wrong not to have decided that the fact that the creditors were likely to be paid in full with interest, even if the order for sale was postponed for a number of years to allow the children to remain in the property until they were older, amounted to exceptional circumstances. She further submitted, in reliance on Barca v Mears [2004] EWHC 2170 (Ch), that the 'narrow' construction of section 335A was not consonant with the right to respect for family and private life recognised in Article 8 of the European Convention on Human Rights, which required that section 335A should be interpreted in a manner which afforded greater weight to the needs of the bankrupt's partner and children.
Held, dismissing the appeal, that the district judge had been correct in deciding that the circumstances in this case were not exceptional. The judge expressed sympathy for the position in which the appellant and her family found themselves, through no fault of their own, and varied the district judge's order to the extent that the sale of the property should not take place for a further three months from the date of the hearing, to allow her time to arrange her affairs and make provision for her children. He also expressed the view that the authority of In Re Holliday needed to be approached with a degree of caution, as the decision had been described in a 1986 case as being 'very much against the run of recent authorities'.
As regards the human rights point under Article 8, the judge concluded that it was unnecessary for him to determine the point because, even if a wider interpretation of 'exceptional circumstances' were required, the district judge's conclusion that there were no exceptional circumstances was correct.

State Bank of India v Sood [1997] - Overreaching is still effective even if no capital monies arise on disposition of the legal estate (an overdraft mortgage, charging existing and future liabilities of the debtor).

Birmingham Midshires Mortgage Services Ltd v Sabherwal [2000] - TLATA does not affect FLEGG's logic.

National Westminster Bank plc v Malhan [2004] - Overreaching is ECHR compatible.

Paddington Building Society v Mendelssohn [1985] - A mortgagee's capacity of overreaching being bound by the LRA 2002, sch. 3, p.2 does not apply where there is a waiver by the beneficiary (failing to assert interest on becoming aware of the disposition).

Kinane v Mackie-Conteh [2005] - K loaned A £50,000. The loan was to be repaid with a return of 100%. M was the director of A. K required security for his advance and was offered a second charge on a house in Kent owned by M and his wife. M and his wife attached their signatures to a letter called 'the security agreement'. The loan was not repaid and K commenced proceedings for repayment of the loan and specific performance of the agreement.
M argued there was no enforceable agreement since it did not comply with section 2 LP(MP)A 1989. K said that the agreement fell within one of the exceptions provided by section 2(5), namely that a constructive trust arose. K said this was so since it was the common intention of himself and M that he should be granted a charge, and that, in any event, the security agreement complied with section 53(1)(c) LPA 1925.
It was found that (i) section 53(1)(c) does not apply on the facts of the case since there was no disposition of an equitable interest. The legal and equitable estates had not been divided prior to the making of the security agreement, and (ii) that a constructive trust does not fall outside the ambit of section 2 and on the facts of the case there was an estoppel overlapping with a constructive trust.

First National Securities Ltd v Hegerty [1985] - Husband and wife owned property in law and equity as joint tenants. A year after buying, the husband took out a mortgage without telling his wife, as well as forging her signature. The bank thought it was getting a legal charge over the house, but fraud made the document useless. When the husband defaulted on the payments, the bank wanted to claim. The court said that in doing this, the husband had severed the joint tenancy and become a tenant in common, and he had made an equitable charge over his share.

Street v Mountford [1985] - Found in favour of Mrs Mountford’s appeal as she was a tenant (exclusive possession for a fixed term at a stated rent) and the presumption of a tenancy was not negated. It was found that she was a tenant over being a licensee as she had exclusive possession of the room and a legal right to occupy it, and was not just under license to use it (permission to occupy only – i.e. someone who uses a plot of land as opposed to someone who lives there/owns it). Under these circumstances, Mrs Mountford was within her rights to apply for fair rent registration.

Manchester Airport v Dutton [1999] - Dutton’s response to the plaintiff’s actions for trespass was that the plaintiff did not have sufficient interest in wood to seek this, due to the limited powers (i.e. no exclusive possession) of the license which had been granted to them. When this was dismissed, Dutton’s appeal was held in that the plaintiff could issue an action for trespass as they were in possession of rights to enter that land for a particular purpose, whilst Dutton et al were not. Even though the plaintiff did not hold exclusive possession, Dutton et al were in breach of this right.

Ofulue v Bossert [2008] - The Bosserts acquired the property belonging to the appellants by virtue of adverse possession (failure to bring court action against B enterering A’s land without permission, and remaining there for a period which rendered court action null and A’s rights void) as they had been squatters there for 22 years, of which the appellants had been aware. B had offered to buy the property from A, but been refused. In an appeal referral from the CC, the CoA held that the B’s had acquired legal title to the property by these means in that the appellants had done little to remove them, and the B’s had gained ‘factual possession’ (a sufficient degree of exclusive physical control over the property) and showed ‘intention to possess’ (excluding the world at large, including the registered owner, from the property, but not intending to own or acquire ownership).

Bristol and West Building Society v Henning [1985] - A husband and wife bought a home in the husband's name only. They took out a mortgage which she knew about, and therefore she was deemed to have implicitly waived her right.

Boscawen v Bajwa [1996] - The owner had a property subject to a bank charge. They wanted to sell this, and the purchaser took out a loan in oder to afford it. However, although the second bank advanced the money, the property never changed hands - instead as the money was used to pay off the first bank's charge, the second bank never received a charge over the property. Subrogation is an equitable remedy as it allows a party that is expecting a security interest to trace their money, and if this has reached the hands of someone who had an interest which has been paid off, you may step into their shoes. As such, the second bank took the first bank's place. In this way, the second bank gets priority over the beneficiary as the first bank would've.

CIBC Mortgages plc v Pitt [1994] - The Pitts owned a house; the husband wanted to borrow some money in order to invest in some shares to speculate but the wife was very unhappy about this. However, she was too frightened to speak out. This was definitely undue influence, but it can be very hard to get evidence of what goes on in a home, and normally actual undue influence can be difficult to prove. The same is true for misrepresentation. Also, the money that the husband had taken out had been for shares, which had substantially dropped in value, leading to him defaulting on the repayments. Although there was undue influence present, the bank had had no more notice of the situation then believing the money was for a holiday home (benefiting them both) and so they could repossess, having had no constructive notice.

National Westminster Bank v Morgan [1985] - A husband and wife owned a home jointly. The husband was unable to meet his mortgage commitments and the building society threatened to seek possession for unpaid debts. The husband made refinancing arrangements with the bank secured by a mortgage in favour of the bank over the matrimonial home. The bank manager called at the home to get the wife to execute the charge. She did not wish the charge to cover her husband's business liabilities. The bank manager assured her, in good faith but incorrectly, that it did not. It was, in fact, unlimited in extent and could, therefore, extend to all the husband's liabilities to the bank, though it was the bank's intention to confine it to the amount needed to refinance the mortgage.
The wife had not received independent legal advice before executing the mortgage. The husband and wife fell into arrears with their payments, and the bank obtained an order for possession of the home. Shortly afterwards, the husband died without owing the bank any business debts. The wife argued that the bank manager exercised undue influence over her and that a special relationship existed between her and the bank which required it to ensure that she received independent legal advice before entering into a further mortgage. She also sought to rely upon BUNDY.

Lord Scarman came to the following conclusions:
1. A transaction would not be set aside on the grounds of undue influence unless it could be shown that it was manifestly disadvantageous to the party alleged to be influenced.
2. The basic principle was not a vague public policy (as formulated in ALLCARD), but the prevention of victimisation of one party by another.
3. The transaction in the instant case was not unfair to the wife.
4. Although the doctrine of undue influence could extend to commercial transactions, including those between banker and customer, it could not be maintained on the present facts that the relationship was one in which the banker had a dominating influence.
5. The bank, therefore, was not under a duty to ensure that the wife had independent advice.

Chater v Mortgage Agency [2004] - A mother and son bought a house together and mortgaged it. The mortgage was very large and would last 25 years, by which time the mother would be 86. When the bank sought to enforce it, the mother claimed undue influence. The CoA held that there was presumed undue influence on the facts as they could not understand why someone of her age would enter into such an agreement. Still, this is merely a presumption as if the bank can prove that the person truly did agree, then it might be rebutted.

Barclays Bank v O'Brien [1994] - A couple owned and jointly executed a mortgage in return for the bank providing overdraft facilities for the husband's business. However, the business failed, so the wife claimed there had been misrepresentation and undue influence (accepted) and it was also found that the bank had been aware of this and was therefore on notice.

TSB v Camfield [1995] - Mr Camfield was a partner in a motor business. The partners requested the bank to provide the business with an overdraft facility of £30,000. The bank agreed, provided the partners executed a charge over their houses. Mrs Camfield duly executed the charge but did so under the impression, as the result of an innocent misrepresentation by the husband, that the maximum liability under the charge would be £15,000. That misapprehension was not corrected by the person advising her, even though the effect of the legal charge was to charge her beneficial interest in the house with an unlimited liability to meet the debts of the partnership, in which she had no financial interest. The business failed and the bank commenced proceedings against the Camfields.
The CoA held that where a wife was induced to execute a charge over the matrimonial home to meet the husband's debts by his innocent misrepresentation that the liability under the charge would not exceed a specified amount, whereas the charge in fact provided security for an unlimited liability, and the creditor was fixed with constructive notice of the husband's misrepresentation because it had failed to take reasonable steps to ensure that the wife understood the charge, the charge would be set aside in its entirety and could not be partially set aside or set aside on terms that it was a valid security for the specified amount for which the wife thought she was at risk. Since, on the evidence, the wife would not have entered into the charge if she had known its true nature and since her ignorance of the true nature of the charge resulted from the bank's failure to take reasonable steps to see that she was properly advised, it followed that the charge would be set aside in its entirety.

Cityland & Property (Holdings) Ltd v Dabrah [1968] - A company leased a house to X. At the end of this they sold it to him for £3500, but he only had £600. They agreed to loan him the rest, secured by a mortgage on the property. It was agreed that no interest was repayable, but the amount loaned was £4500. There was a discount available within the 6 years that X had to repay, but if he defaulted then the full amount would be payable at once. Unfortunately, X slightly defaulted on one of the repayments and the company demanded this. X appealed, saying it was unconscionable and the court agreed.

Multiservice Bookbinding v Marden [1979] - A company charged a bookbinding business for a loan of £36k. The loan was provided by a private individual who was looking for something to invest his money in, and so there was a strange term which meant that the interest rate on the repayments would fluctuate depending on the strength of the British Pound to the Swedish Franc. As such, over the 10 year repayment scheme, the company found themselves paying £14k extra due to the rate often being in favour of the lender. On the facts, the two parties had relatively equal bargaining power, so even if the term might have been unreasonable, it was certainly not unconscionable.

Paragon Finance v Nash [2001] - The lender had set a variable rate and had raised the figures against the borrower. The borrower then sought to argue that this was unreasonable. The court wondered whether they should imply a term that a lender could not raise a rate dishonestly (i.e. to get of borrower), capriciously (for an inexplicable/irrelevant reason), arbitrarily or in a way which no other lender would have done.

White v City of London Brewery Company [1889] - There was a pub in the Isle of Dogs that took out a loan from LBC. However, they couldn't repay it so the company repossessed. They then let it as a 'tithe' pub, which meant that the owner could only sell the brewery company's beers. The court said that if they had allowed all beers to have been sold, they would've made money therefore they were liable for willful default.

Ropaigealach v Barclays Bank [2000] - House was mortgaged to BB, the R's then moved out for renovation purposes. During this period, they fell behind on their repayments, so the bank posted a letter that they didn't get. BB then repossessed the house and sold it! The R's tried to argue that:
1) the bank must go through court and,
2) s.36 should have given them relief against possession
The court said:
1) there was no such restriction and,
2) s.36 had not been triggered.
As such, there is a huge hole in the Administation of Justice Act which has not been closed, but peaceful repossessions are still very rare in any case.

Meretz Investments AV v ACP Ltd [2006] - The bank was trying to sell a property for a variety of reasons: some were to fulfil the debt, but others were for extraneous purposes. It was held that the bank does not need to have 'purity of purpose' so long as one reason is for the 'correct' motive, then it may have others.

Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] - A developer purchased a developing site with a mortgage. However, after a while he ran into difficulties with the repayments and the mortgagor wanted to sell it. It advertised the site in several newspapers, but neglected to say that alongside already having obtained planning permission for houses, it had it for flats as well. As such, when it was sold, the price was not as high as it should have been, neither was it enough to cover the developer's debt. The mortgagor sued the developer, who in turn counter-claimed for not getting the best price. The court said that the property could have been sold for more, and so the market value was not realised. The mortgagor is under a duty to make the most of a property's assets.

Farrar v Farrars Ltd [1888] - A quarryman took out a mortgage over a stone quarry. However, he became unable to meet the repayments so the mortgagor wanted to sell. No-one wanted to buy it, so the mortgagor set up a company with some other lenders, purchased the property and transferred it to this. This was not a sale to him as a company is seen as a separate legal entity in law. It was a sale to an associated party, but as the sale was conducted fairly, and the property sold for a good price, it was upheld.

Tse Kwong Lam v Wong Chit Sen [1983] - There was a 15 storey building that the owner required a loan to develop. However, he soon realised he would not be able to pay it back on time so the mortgagor (who was a private individual) wanted to repossess and sell it. He advertised a private auction for the property in three newspapers. However, the mortgagor also owned a company with his wife, which was staffed by family members and was interested in purchasing the building under this. When the auction day arrived, the mortgagor set the reserve price at $1.5 million, and had his wife as one of the bidders; she managed to win the auction with a bid of $1.2 million. This was still not enough to cover the debt, so the mortgagor sued the owner, who counter-claimed in that $1.2 was an undervaluation of the building, and it had been a sale to an associated party.
It was found that the mortgagor had not satisfactorily discharged the burden of proof as he had set the reserve price himself without seeking any expert advice (the building was in fact worth much more), his advert was not informative or 'enticing' enough and he had not even tried to find a private buyer for it. As such, the sale was improperly exercised. However, although the sale could be set aside, as this was an equitable remedy, the courts did not deign to exercise it here as the mortgagee had taken too long to seek recompense.

Medforth v Blake [2000] - The receiver of the business of a pig farmer was held liable for failure to negotiate a bulk discount for the pig feed which he purchased. The equitable duty [the mortgagee or the mortgagees receiver (and they are to be treated largely the same as regards their duties) owes a duty to the borrower (and by extension to the guarantor) to act in good faith with the object of preserving and realising assets for the benefit of the lender; it must take reasonable care to sell the property for a proper price] included a duty of due diligence as well as good faith. As such, it was held that the duties which a receiver owed to the borrower included, but were not necessarily confined to, a duty of good faith. Subject to the receiver’s primary duty to try to bringabout a situation in which the debt and interest could be paid to the secured lender, the receiver also owed a duty to the borrower to manage the business and the property with due diligence.