Borman v Griffith

English Property Law

Borman v Griffith
Image: ‘Pathway of Life’ by Connie Tom

Implication by way of contract is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925 a landowner sought to let out a part of his estate for a determined period. Under the terms of the lease there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’ while leading to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract nor any reliable evidence that use of the drive had been orally agreed between the two parties. During this period and short after taking occupancy of the Gardens, the Hall was leased to another occupier with no issues arising between them.

A few years afterwards this same tenant vacated the Hall and so the landowner let it out to another party for a fixed period, after which the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began. Two years after taking up residency the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access, hence resulting in litigation.

Relying upon the wording of s.62(1) of the Law of Property Act and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord. When considered by the court the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and which in this instance the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights. It was on these grounds that the judge endorsed the action and awarded accordingly.

Key Citations

“…the definition of “conveyance” in the Conveyancing Act, 1881, is limited to documents made by deed, and the contract in the present case is not by deed.”

“…a lease for any term of more than three years must be by deed, and it is well known that, under s. 3 of the Real Property Act, 1845,”…a lease, required by law to be in writing, of any tenements or hereditaments…. shall…be void at law unless made by deed.””

“…where, as in the present case, two properties belonging to a single owner and about to be granted are separated by a common road, or where a plainly visible road exists over the one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded…”

“…a grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”

Midland Bank Plc v Cooke

English Property Law

Midland Bank Plc v Cooke
Image: ‘Pillars of Deceit’ by Michael Lang

When two first-time homebuyers rely upon a financial donation from family members, the equality of shared ownership can become displaced despite individual perceptions of common intention and the partnership of marriage.

When two young newlyweds entered into a mortgage of their family home it was not without a significant cash contribution from the groom’s parents. This gift was bestowed upon the couple after the bride’s parents had covered the costs of the wedding and therefore implied equal investment into their committed relationship. At the time of conveyance the deeds fell under sole title in favour of the groom and no assumptions were otherwise made than it was their home and that both parties were joint occupants and thus entitled to equal benefits.

A few years after the purchase the nature of the mortgage altered and was now liable under the terms of an acquiring bank, at which point the wife was asked to sign away any beneficial interest she held in favour of the new mortgagee. Her agreement to this request was given (albeit under visible duress) so that the husband could continue to run his business and the family (now with three children) could remain in secure occupation.

After re-mortgaging the property a number of years later the wife took the opportunity to have her name included within the title and thus became a legal tenant-in-common. When the business began to fail and the mortgage fell into unrecoverable default the bank sought to repossess, at which point the wife challenged the order on grounds that any relinquishing of interest had not been of her volition, rather that her now estranged husband’s undue influence led her to act against her will but under marital obligation.

In the first hearing the judge found in favour of the wife on the grounds described before going further to explain that while her collective time and monies invested into the home during the course of their marriage could not translate into an equal half-share of the property it did result in a six percent stakeholding arising from her half-share entitlement of the cash gifted by the groom’s parents at the point of purchase; and therefore under those circumstances any repossession order could not stand.

When challenged by the bank and the wife in the Court of Appeal the principle of shared equity was given greater consideration, along with the equitable maxim ‘equality is equity‘ which on this occasion was not relied upon. Instead it was agreed that the wife’s actions first dismissed as non-contributory  were embraced as wholly acceptable despite no verbal agreements between the couple as to whether or not the home was equally divisible to begin with.

Key Citations

“…it would not only be sensible to draw the inference that the bridegroom’s parents intended to make a present to them both of the money’s which were to be applied in the purchase, but highly artificial to draw any other inference.”

“…the court in the exercise of its equitable jurisdiction would not permit the husband in whom the legal estate was vested and who had accepted the benefit of the contributions to take the whole beneficial interest merely because at the time the wife made her contributions there had been no express agreement as to how her share in it was to be quantified.”

“…it would be anomalous, against that background, to create a range of homebuyers who were beyond the pail of equity’s assistance in formulating a fair presumed basis for the sharing of beneficial title, simply because they had been honest enough to admit that they never gave ownership a thought or reached any agreement about it.”

“…the positive evidence that the parties neither discussed nor intended any agreement as to the proportions of their beneficial interest does not preclude the court, on general equitable principles, from inferring one.”

“…that this was a couple that had chosen to introduce into their relationship the additional commitment which marriage involves, the conclusion becomes inescapable that their presumed intention was to share the beneficial interest in the property in equal shares.”

Re Ellenborough Park

English Property Law

Re Ellenborough Park
Image: ‘A Sunday on La Grande Jatte’ by Georges Seurat

As can be traced back through the historic case law surrounding easements, there has been much dispute as to exactly what constitutes such a privilege; and so in Re Ellenborough Park a generosity of scope was favourably agreed upon and the principle further refined.

When the considerate nature of the original owner of Ellenborough Park (itself no more than an expansive parcel of land) bestowed conditional rights upon the future freeholders of property encircling it, those privileges allowed exclusive enjoyment of the space and fresh air afforded them, yet the vendor had no idea that many years later that same kindness of spirit would be challenged by those succeeding him.

For almost 100 years the owners of the chosen properties had enjoyed uninterrupted peaceful use until the second world war brought with it the temporary military occupation of both the park and the homes built around it. After returning the houses back to their current owners (along with suitable compensation for their use) it was decided by the trustees of Ellenborough Park that continued access to the gardens would no longer be accepted and that under the terms of the original conveyance no such easements had ever been put into effect.

Under the general terms prescribed by common law there are a number of criteria that need to be met for an easement to exist. These critical elements include the principles that those assigned the granting of an easement must take it on the understanding that use of such a covenant relies upon utility and benefit from the right and that benefit of the easement must derive from the granting of such a right. Because Ellenborough Park was cosmetically different from most commonly prescribed easements it was argued that the mere capacity to wander around freely upon a large plot of land (albeit subject to expressly detailed maintenance contributions) amounted to no more than a ‘jus spatiandi’ which is a phrase typically assigned to public parks and recreational areas requiring little more than careful observation of the rules associated with their use.

In the first hearing the judge found in favour of the defendants and so when further considered under appeal, an in-depth examination of the founding conveyance revealed very succinct terminology as to support and endorse the intentions of the estate owner in that he had not only established by definition the presence of easements to the freeholders, but that such consideration had been expressly granted by way of the deed’s construction. This decision has since proven instrumental to the variances in the physical representation of easements and the reinterpretation of covenants provided for by way of grant.

Key Citations

“Unless therefore, I am compelled by the state of the authorities I am not anxious to deprive the owners of the plots on the former White Cross Estate of the rights which the vendors’ conveyances from 1855 to 1864 or thereabouts, attempted to give them.”

“…the conveyances of parts of the White Cross Estate conferred on the purchasers and their successors in title legal and effective easements to use the pleasure ground known as Ellenborough Park in the manner in which it was intended by the conveyances to be used.”

“This is a case of an express grant which on its true construction shows an intention to create easements running with the land.”

“…the language of the deed of 1864 is clearly to the effect that the right of enjoyment of the garden was intended to be annexed to the premises sold, rather than given as a privilege personal to their purchaser.”

“There is clear authority that, if such be the substantial effect of the covenant, its benefit and burden will run with the land.”

“…an easement must be appurtenant to an estate for the benefit of that estate and its owner and that it cannot at the same time lawfully be enjoyed by any other person.”

“We see nothing repugnant to a man’s proprietorship or possession of a piece of land that he should decide to make it and maintain it as an ornamental garden, and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.”

“No doubt a garden is a pleasure – on high authority it is the highest of pleasures – but in our judgement it is not a right having no quality either of utility or benefit as those words should be understood.”

Gillett v Holt

English Property Law

Gillett v Holt
Image: ‘Folk Art Farm’ by Tony Grote

The notorious ambiguity of estoppel is explored here through the unexpected end of a lifelong working relationship built upon trust, duty and a faith of spirit, and as is so often found in matters such as these a man’s word is not always his bond.

After investing the best part of forty years into a farming alliance that created an almost familial structure, the arrival of a divisive party witnessed the destructive end of a mutually prosperous and seemingly concrete friendship. When a younger man forged a meaningful relationship with an older farmer the two men became almost father and son, with the former relying upon and often following the wisdom of the latter in accordance with domestic arrangements, career aspirations and even parenting decisions; all while sustaining and enriching the estate’s financial footing through the course of his duties.

This interdependence became the foundation of a commercial enterprise that by definition became more complex and so required increased investment from both the employer’s  paid advisers and the younger man’s wife as a co-contributor. During the many years spent together there had been a significant number of verbal declarations as to the intentions of the elder man when it came time to choose a successor to his sprawling estates, and it was these quasi-promises along with multiple wills that coloured the appellants choice-making and calculated reluctance to set aside the type of financial provisions one might ordinarily expect.

The mechanics of the business and associated friendship continued to flourish until the arrival of a trained solicitor who for one reason of another began making spurious claims that the appellant and his wife were defrauding the business and that legal intervention was ultimately necessary. This course of action and influential advice also led to the couple’s removal from the existing will and sole beneficial rights instead passed to the now co-defendant.

After an exhaustive cross-examination in the original hearing the deciding judge awarded against the appellant despite his claim of proprietary estoppel following the removal of his presence in the will and inherent reliance upon the goodwill of the defendant during the passage of time.

At appeal the fluid and therefore often misinterpreted principle of estoppel was held to close scrutiny along with the previous findings of the judge; whereupon it became clear that while a degree of effort had been put into the relevance of estoppel the obvious right to claim had been lost to principles attributable to succession law. Through the delicate use of equity the court then agreed that (a) there was ample evidence to show a detriment under continued reliance (b) that in order for a clean break to exist there needed to be a reversal of fortune on the part of the co-defendant and a ‘coming good’ on the word of the older man.

Key Citations

“This decision is clearly wrong, for the judge seems to have forgotten that the whole point of estoppel claims is that they concern promises which, since they are unsupported by consideration, are initially revocable. What later makes them binding, and therefore irrevocable, is the promisee’s detrimental reliance on them.”

“…there must be a sufficient link between the promises relied on and the conduct which constitutes the detriment.”

“The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial.”

“…for thirty years Mr and Mrs Gillett and their sons provided Mr Holt with a sort of surrogate family.”

“…they relied on Mr Holt’s assurance, because they thought he was a man of his word, and so they deprived themselves of the opportunity of trying to better themselves in other ways.”

Parker v British Airways Board

English Property Law

Parker v British Airways Board
Image: ‘Concorde’ by Ivan Berryman

Under the breadth of property ownership does the principle of occupier’s rights supersede the entitlement of an authentic finder or is the common law more complex than appears?

While waiting to catch a flight a qualified guest of an airport lounge discovered an abandoned men’s gold bracelet on the seating area floor. By virtue of his own honesty the respondent handed the jewellery to a member of staff on the proviso that should the original owner not be found the airline was to forward the item to his home address as  was provided.

After waiting almost a year the appellants instead took it upon themselves to sell the bracelet while directly profiting from the sale. Upon discovery the respondent immediately sued for loss incurred from the deceit and conversion of assets. In the first hearing the judge awarded in favour of the passenger whereupon the airline appealed and the matter was given greater thought.

When assessing the imputation that occupiers of land are privy to greater powers of ownership to lost property the distinctions were drawn in order to clarify where the exceptions to those assumptions lay. In common law it has been largely agreed through the progression of case law, that in many familiar circumstances the rights to ownership of property construed as abandoned or lost would fall to the landowner; however in this case the airline took no steps to draw notice to that right when considering the frequency and nature of transient visitors to their lounge. In contrast the only provisions made for matters involving lost property entailed procedural guides for staff members and no more.

After careful evaluation of the two prevailing rights, and when comparing to the honest intentions of the passenger to an abject failure of the airline to express their position when handling lost property, the appeal court held that it would be unreasonable to deny the respondent his fundamental rights to ownership of property honestly acquired in the absence of the original owner.

Key Citations

“…if a finder is under a duty to take reasonable steps to reunite the true owner with his lost property, this will usually involve an obligation to inform the occupier of the land of the fact that the article has been found and where it is to be kept.”

“…a finder of chattel, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim it through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.”

“The plaintiff was not a trespasser in the executive lounge and, in taking the bracelet into his care and control, he was acting with obvious honesty. Prima facie, therefore, he had a full finder’s rights and obligations.”

“Evidence was given of staff instructions which govern the action to be taken by employees of the defendants of the defendants if they found lost articles or lost chattels were handed to them. But these instructions were not published to users of the lounge.”

 “…on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet.”

“Against all but the true owner a person in possession has the right to possess. It should follow therefore that an innocent handler of property who intends to take it for the purpose of discovering the owner and returning it to him should not be in dangers of infringing any right in a third party.”