Property case law update: March 2012

Re Bradmoss

Citation: Re Bradmoss Ltd – 10.2.12 – Upper Tribunal: Lands Chamber [2012] UKUT 3 (LC)

Keywords: Alienation – No underletting without consent – Fee for consent – Fee for registration – Whether charge not provided for in lease permitted – Whether “administration charge” under 2002 Act.

Held: (1) Where consent for underletting was not to be unreasonably withheld and there was no express provision for a fee the question to ask was would it be unreasonable to refuse consent if the tenant did not pay. It would not be unreasonable. The absence of express provision did not make such a charge unreasonable. (2) The charge was an “administration charge”, in fact it was a “variable administration charge”.

Elliott v Islington BC

Citation: Elliott v Islington BC – 1.2.12 – CoA – [2012] EWCA Civ 56

Keywords: Trees (self seeding in tenanted premises) – Nuisance – Quia timet relief.

Held: Where there was evidence trees would inevitably cause damage in the future the availability of a quia timet injunction depended on establishing the risk of actual damage was imminent and real taking into account the ability and willingness of the defendant to prevent the damage before it actually occurred.

Lloyds TSB v Markendan & Uddin

Citation: Lloyds TSB v Markendan & Uddin – 9.2.12 – CA – [2012] EWCA Civ 65

Keywords: Solicitor for mortgage lender – Release of funds on undertakings – Fictious purchase and purchaser’s solicitors – Whether release of funds was a breach of trust  – Meaning of completion

Held: Funds released to solicitor on basis on trust for lender until “completion” (Lenders’ Handbook cl 10.3.4). Completion conventionally was exchange of money and completed documents. Where there were no documents or no genuine documents there was no completion. The solicitor paid the monies away in breach of trust. NB s61 Trustee Act confers a discretion which is some protection for such a solicitor if acting honestly and reasonably.

Cameron v Boggiano

Citation: Cameron v Boggiano– 21.2.12 – CoA – [2012] EWCA Civ 157

Keywords: Boundary dispute – Construction of deeds – Transfer plan – Topographical features

Held: Where a transfer and/or plan was clear and unambiguous, a mismatch with the physical position on the ground did not justify disregarding the documents. Where a plan was insufficiently clear regard to topographical features as at the relevant date was permitted to aid construction.