Property & Land Law

Legal issues in relation to property, land and real estate are often complex and need specialist advice.

Throughout his 40+ years in practice, Christopher Cant has gained in-depth expertise on drafting and tackling complex issues, advising on difficult points, consulting on the structuring of transactions and preparing drafts such as overage clauses and land promotion agreements. He often acts in contentious property matters including disputes involving easements over land, restrictive covenants, enforcement of charges and guarantees, leases and sales of land.

The spectrum of transactions Christopher is instructed on run from large scale residential and shopping developments to single dwellings or offices. His clients range from large scale property developers, niche builders and local authorities to individual householders.

If you need legal advice on a property or land law issues please contact , Christopher Cant, Property Law Barrister, on:

Telephone: 0203 150 2242 (Clerksroom)
E-mail: christopher.cant@clerksroom.com
Mobile: 07305 339379

Overage and planning promotion agreements

Landowners have become ever more sophisticated in their approach to increasing the value of land. Options and conditional sale agreements were the traditional choices but over the last thirty years new arrangements have been devised and amplified.

Overage agreements and then planning promotion agreements have been added to the armoury. Allied to this trend has been the greater thought given to ransom situations whether due to an actual ransom strip or alternatively the reliance on the existence of a restrictive covenant or easement to block a proposed development unless released in return for payment.

As a result, drafting of overage clauses have become more complex particularly due to the need to ensure maximum protection is provided for rights under overage provisions which are not themselves enduring property rights. It is an interesting area of the law but a demanding one.

Overage Guides/Checklist

An overview of the issues raised by overage agreements is contained in two guides Christopher has written along with a basic checklist.

The Overage Guides cover

  • Explanation of overage;
  • discusses alternatives;
  • warns of traps;
  • highlights drafting points;
  • debates means of protection including restrictive covenants and chains of covenants

Update on pitfalls of overage agreements

In this update Christopher considers the pitfalls highlighted in London & Ilford Limited v Sovereign Property Holdings Limited and Burrows Investments Limited v Ward Homes Limited. Click here to view his insights which were featured on the Lexology website.

Using overage agreements to encourage land transactions

Including overage clauses in land transactions is a means of encouraging sales of land which would otherwise not occur. Christopher has previously considered ways in which transactions might be encouraged in difficult financial times. His thoughts can be found at Encouraging Transactions With Advice – Overage And Other Approaches

Increasing the value of land by obtaining planning permission is an attractive proposition but skill is required to obtain the grant. For many landowners planning promotion agreements are the solution. These combine property concepts with equitable obligations.

Good faith / fiduciary obligations in land promotion agreements

The use of such property arrangements has increased uncertainty as they are no longer exclusively governed by contract. Equity has intervened with the operation of such arrangements to introduce independent obligations of good faith. The decisions of Berkeley Community Villages v Pullen; Ross River v Cambridge FC; and Ross River v Waveley are discussed in this article Imposing Fiduciary Obligations Into Property Ventures.

Premature Rescission

Prior to the 2008 recession a growing buy to let market combined with a buoyant property market led to a large number of purchases of flats and commercial units “off plan”. This was hit hard by the onset of the recession. Many developer vendors lost the funding for the construction work and the purchasers lost their mortgage offers for 90%-100% of the purchase price. Long delays occurred with late completions.

Where did this leave the parties to the contract? One reaction to the news that the developer had at last finished the work was for the purchaser to seek to terminate the contract alleging a repudiatory breach by the vendor. Often there would no longer be a mortgage offer available or if there was it was for a smaller amount than needed. Two Court of Appeal decisions illustrate how dangerous such a reaction is for the purchaser. In both Telford Homes (Creekside) Limited v Ampurius Nu Homes Holdings Limited and Urban 1 (Blonk Street) Limited v Ayres such a course was adopted by the purchaser and failed. By taking such a step the purchaser committed a breach thereby losing the deposit and becoming exposed to a possible damages claim. These decisions are considered in Late completion tempts premature termination.

Merciless Application of section 2 1989 Act

The Law of Property (Miscellaneous Provisions) Act 1989 requires not just that a contract to sell land is in writing but that all the terms agreed are contained in the document. The decision in Sukhlall v Bansoodeb emphatically illustrates once more that the absence of a provision from such a document will cause the agreement to be unenforceable even if completion has taken place. Yet again Rimer LJ’s description of the application of section 2 as “merciless” has been fully justified. A fuller consideration of the decision is set out in this article Merciless Application Of Section 2 1989 Act.

Construction of registrable documents

The Court of Appeal in Cherry Tree v Landmain radically changed the treatment of background information when construing conveyancing documents which are registered at HM Land Registry. It introduced a major qualification in property cases to the principles set out by Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society. It follows with modification the approach adopted in Australia as stated in Westfield Management v Perpetual Trustee. Background information which will not be expected by a reasonable person at the time of execution to be available in the future for persons relying on the register will not have any weight attached to it when construing the conveyancing document.

Scope of decision – it will not be limited to legal charges but will also cover

  • leases – will this reverse the decisions in cases such as KPMG v Network Rail and Holding Barnes v Hill House;
  • easements – will cases on the construction of easements such as Peacock v Custins (reliance on plan attached to prior agreement) and Partridge v Lawrence (reliance on architect’s original plan) no longer be followed?
  • restrictive covenants – will it apply to restrictive covenants as they do not need to be completed by registration and if it does will it mean that it is no longer possible to establish building schemes relating to registered land by use of the surrounding circumstances?
  • transfers – will this decision reverse the very strong trend to take into account all background information and conduct subsequent to the transfer (as in Ali v Land and Cameron v Boggiano)

Impact of decision – much background material no longer has weight attached to it; it applies to all conveyancing documents which intended to appear on register; it applies regardless of date of execution which means that this will require the reconsideration of the correct construction of existing registrable documents?

A consideration of some of the consequences of this decision are set out in this article
Construing conveyancing documents – a major change in the Court’s approach

Execution of documents 

It is crucial that documents execute on behalf of a corporate developer comply with the requirements of section 44 Companies Act 2006. It is a trap which unfortunately is fallen into even when legally represented. For instance, a notice required to be given to acquire a site under a conditional sale or option must comply and if the notice served fails to then the site will not be acquired. For a fuller explanation see the article Beware companies executing documents.

New recreational easements

The Supreme Court in Regency Villas Title Limited v Diamond Resorts (Europe) Limited [2018] UKSC 57 by a majority has confirmed that recreational and sporting rights can qualify as easements in land law. The case concerned a grant of a right to use facilities comprised in a leisure complex on part of an adjoining property. Lord Carnwath in his dissenting judgment described the right as akin to membership of a country club. No longer will it be the case that because a right is a mere recreational right it cannot qualify as an easement. What recreational rights can now qualify as easements and when is discussed in this paper New Recreational Easements.

Parking and easements

Risk assessment is really important before incurring heavy expenditure on a proposed development. Developers run a serious risk if any issue highlighted by such an assessment is ignored and the development proceeds without addressing the issue. The Courts place a premium on developer’s behaving in a neighbourly manner. One such right is parking rights. An infringement will result in a mandatory injunction or the alternative to an injunction will be an award equal to a slice of the expected development profits which in Kettel v Bloomfeld amounted to 50%. This is investigated in more detail in this article Don’t mess with parking rights.

Actionable interference with easements

Easements over property are an important part of the nitty-gritty governing the relationship of land or buildings with individuals, other land and other buildings. In contrast to public rights, not all interferences will give rise to a cause of action. The paper below explores when an actionable interference will arise. Consideration is given to cases such as Celsteel Ltd v Alton House Holdings and B & Q plc v Liverpool & Lancashire Properties Ltd and the authorities on agricultural easements relating to the width of such ways and claims to swing and verge space.
Actionable Interference with Easements.

Sales of Part of land and easements

The retention of part of land owned whilst selling off a part can give rise to issues with regard to easements. This is considered in Christopher ‘s article Avoiding problems with easements.

Adjoining properties and easements

Adjoining properties can give rise to issues not only over party walls but also with regard to easements. These issues are investigated in this paper by Christopher.

The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 carried out a radical change with regard to the adoption of eligible sewers and lateral drains by transferring them from private into public ownership. Amongst the exclusions from this transfer are private drains within the curtilage of a building which concept is given a wide meaning by DEFRA. In its eyes a single curtilage includes caravan sites, shopping malls and some larger commercial and industrial sites.

The subject of private sewers and their adoption throws up some unexpected and interesting areas of law. The concept of curtilage plays a major role but involves research back to the textbooks of the fifteenth century. There are interesting legal issues as to what constitutes a single building

A resume is set out in the following paper of the difference between sewers and drains; the determination of curtilage; what constitutes a building; the history of the Public Health Acts relevant to this area; and the operation of the 2011 Regulations Compulsory adoption of private sewers and lateral drains

The clear warning to developers jumping the gun by commencing development on sites subject to restrictive covenants before modification given by the Court of Appeal has been qualified by the Supreme Court in the Alexander Devine Children’s Cancer Trust. The warning still holds good but the approach is more nuanced as discussed by Christopher in this article.

Discharge or modification

The enforceability of restrictive covenants on land is not fixed in perpetuity. This is illustrated by the case of James Hall & Company (Property) Limited v Pamela Maughan where a local community relied on a restrictive covenant to save a public house but were defeated by an application to modify the restrictive covenants under section 84 LPA 1925 for the reasons discussed in this article.

Sales of leasehold interests conditional on landlord’s consent to assign

Whether under an open contract or governed by standard conditions of sale interesting obligations are imposed on the vendor and the buyer to conditional sales of leasehold interests. What constitutes consent for these purposes remains a continuing problem as illustrated in Aubergine Enterprises Ltd v Lakewood International Ltd and Alchemy Estates v Astor. These obligations and the issues arising from applications for landlord’s consent in the context of vendor and purchaser are considered in this paper Sales Subject To Landlord’s Consent.

Break notices 

To obtain the ability to develop a site reliance often has to be placed on the exercise of a break clause in a property lease. This is a fraught area facing many hurdles as shown by the decision in PCE Investors v Cancer Research. The dangers are expanded on in this article Beware Break Clauses.

Adverse possession of registered or unregistered land remains a difficult subject split between the continuing relevance of the law prior to the 2002 changes and the law subsequent to those changes. Developments in the law are considered in this update:

Update 2015 – covering the important Court of Appeal decision in R (oao Best and Chief Land Registrar) v SS for Justice regarding illegal acts as a basis for adverse possession; adverse possession and first registration; parking or landscaping as a basis for a claim.

Update 2012

  1. Para. 5(4) – the consideration by the Court of Appeal of para. 5(4) Sch. 6 LRA 2002 (where the applicant owns land next to the land claimed due to adverse possession) in IAM Group plc v Chowdrey and Zarb v Parry.
  2. Reinstated applications – Franks v Chief Land Registrar had to consider the knotty problem of the effect on priority when a cancelled application for title is reinstated.
  3. Acknowledgement – the House of Lords in Ofulue v Bossert consideration of two issues with regard to acknowledgement alleged to arise from pleadings and without prejudice correspondence
  4. Public highways – the rebuttal of the attempt to claim title by adverse possession to part of a public highway in R v Land Registry (Cambridgeshire CC).
  5. Failure to serve a counter-notice when an application is made by a claimant based on adverse possession is not the end of the matter. Baxter v Mannion holds that an application for rectification is an available course of action.
  6. Damages for trespass – the consideration by the Court of Appeal in Ramzan v Brookwide and Enfield BC v Outdoor Plus of the measure of damages to be awarded against trespasses.

Adverse Possession Update

Review of the combined effect of Stack v Dowden and Jones v Kernott

The combined effect of Stack v Dowden and Jones v Kernott has set out a regime for determining ownership when properties are held in the joint names of co-habitants. The position is much less clear when the property is in the sole name of one co-habitant. The impact of the Supreme Court decisions when the property is held in a sole name is discussed in the paper below. It considers the similarities and differences between property held in joint names and a sole name taking into account decisions such as Gallarotti v Sebastianelli; Geary v Rankine; Aspden v Elvey; Thompson v Hurst; Chapman v Jaume.

Has Supreme Court affected beneficial ownership of property in single legal ownership?

Land ownership can impose serious burdens. It can expose the owner to tortious claims – crumbling cliffs, falling rocks and blocked streams. The extent of this liability is delved into in this paper by Christopher The Cost of Nature.

February 2015 Update – amending defective charges by the Land Registry under rule 130 LRR 2003 (Bank of Scotland plc v Greville Development); Equity of Exoneration as between guarantors (Day v Shaw); Onerous planning conditions and conditional contracts (Rentokil Initial 1927 plc v Goodman Derrick); and Financial consequences of exercising a break clause (Marks and Spencer v BNP Paribas Securities).

February 2014 Property Update – “T” marks on plans (Lanfear v Chandler); Fiduciary obligations and Property joint ventures (Pennyfeathers Limited v Pennyfeathers Property Company Limited); Quist close trust on advances (Gabriel v Little); landlord’s loss of rights against a surety (Topland Portfolio No. 1 Limited v Smiths News Trading Limited); Temporary exemption from rates for unoccupied new non-domestic builds; problems with Chancel repairs liability.

October 2013 Property Update – Replacement of Distress a new statutory procedure; Rectification (Ahmad v Secret Garden); Community Infrastructure Levy- VAO appeals; Overage (Walton Homes v Staffordshire CC); holding over (Barclays Wealth Trustees v Erimus Housing); Adverse Possession – moored boats.

September 2013 Property Update – Repudiation of a contract to sell off-plan (Telford Homes (Creekside) Limited v Ampurius Nu Homes Holdings Limited and Urban 1 (Blonk Street) Limited v Ayres); need for the entire contract to be in writing (Sukhlall v Bansoodeb); rates on unoccupied properties; and SDLT and Sub-sale relief (HMTC v DV3 RS Limited Partnership).

June 2013 Commercial Property Update – Non-domestic rates; Overage; Rent for period after break of lease; Community Infrastructure Levy – points to bear in mind regarding CIL liability notices

Please call Christopher direct or the support team at Clerksroom on 0203 150 2242 if you would like to discuss your property legal matter and how he could help.