Charrington v Simons & Co Ltd (1971)

English Property Law

Charrington v Simons & Co Ltd
‘In the Orchard’ by James Guthrie

The conveyance of land with restrictive covenants is not uncommon within property law, however when the safeguard designed to protect the needs of the vendor becomes central to his anguish, it becomes clear that the attached principles have become somewhat misused.

In a matter concerning the part-sale of an orchard by a farmer, the respondent entered into the purchase on the understanding that at no point was the road running between the two plots previously owned, to exceed the height beyond that of the section retained, as to do otherwise would impact upon the farmer’s ability to harvest his remaining plot.

After ignoring the covenant, the respondent began resurfacing the road to a height that did in fact exceed the permissions granted, thus prompting the appellant to protest both orally and by letter. When the work continued and his obvious displeasure went unheard, the appellant issued a writ in pursuit of a mandatory injunction, which would result in the removal of all works undertaken at cost to the respondent.

In the first hearing, the judge adopted the unorthodox position of taking two negatives in order to create a positive. This was executed through an injunction, while explaining that:

(i) The respondent was to modify the road so as to benefit the appellant, rather than to remove it outright, after having spent around £1400 on its construction, before paying the appellant £1062 in special damages for the harm caused to date.

(ii) The mandatory injunction was to remain ineffective for a period of three years, while the respondent set about altering the road’s layout, which itself required agreement by the appellant to trespass onto his land in order to carry out the work.

(iii) That consultation between the two parties would continue throughout this period, and that should the appellant refuse to consent to the needs of the respondent, the respondent would be granted sufficient argument so as to discharge the injunction entirely.

Upon immediate appeal, the appellant argued that the judge had erred in law when creating an injunction that rendered the breach of covenant void, that requirement to consent to the work would result in a trespass and that such an impingement and modification would cause the appellant to suffer both personally and financially, as his own orchard would be compromised during the alterations.

With consideration of the judge’s genuine wish to improve upon an already damaging situation, the Court held that when refusing to enforce the injunction with immediate effect, the court had failed to properly address the purpose of both the covenant and the injunction in favour of an outcome serving only the needs of the breaching party.

 

Thorner v Major (2009)

English Family Law

Thorner v Major
‘Farm’ by Denis Pannett

While of a strictly familial nature, this case relies upon elements of land law and principles of equity for its proximation of fact. After a decade-spanning relationship of trust and obligation observed by the appellant, it falls to the House of Lords to lay to rest the true meaning behind the time shared between two cousins.

The core of this dispute rests within the subjective disparity of those seeking claim to the estate of a private farmer, and the man who knew him probably better than anybody. After growing up and working on his father’s farm, the appellant found himself extending his energies to his older cousin, after witnessing him suffering loss both through death and divorce. Having no children of his own, the cousin had continued to toil the land left him, and in turn looked to the appellant to help manage the considerably extensive freehold.

For one reason or another, the arrangement required no payment exchange, and so it was that until the death of the landowner, the two men worked the farm and developed it further, through an intimate relationship based upon the appellant’s unique ability to understand the emotion and intentions of a man renowned for his narrow vocabulary and deep introspection.

When upon his death, the appellant followed up on his understanding that the farm had been bequeathed him, the claim of succession was contested on grounds of proprietary estoppel, and the ambiguity of true intention displayed by the deceased. There were principally two events that triggered the assumption of his entitlement, namely (i) a gesture that indirectly disclosed the plans of the elder cousin in relation to deaths duties, and (ii) the inherent nature of their close friendship, and the disappearance and subsequent implied revocation of a will drawn up eight years prior to his passing.

Needless to say, the appellant had over the passage of time, made numerous adjustments to his own circumstances, in order that the relationship could sustain the changes discussed and alterations incorporated into the estate; and there were a number of other minor events that further supported his interpretation that he would be the sole successor of his cousin’s farm. Unfortunately for the respondents, the principle of proprietary estoppel relies upon the inability to identify the land discussed, therefore the challenge brought against the appellant was fundamentally flawed, while it was more importantly noted by one of the presiding judges that by all accounts, a constructive trust had by definition, been created through the dealings and partnering of the two individuals during the lifetime of their relationship.