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Property case law update: April 2011

Baxter v Mannion – 22.2.11 – [2011] EWCA Civ 120 – CoA
Adverse Possession – LRA 2003 Schedule 6 – Burden of Proof – Mistake & Rectification of the register under LRA 2003 Schedule 4 – A person not in adverse possession for 10 years was not entitled to apply under Schedule 6 – Schedule 4 could be used to reinstate the original owner and remove the entry in favour of someone whose application, based on adverse possession, was granted when in fact they could not prove the requisite adverse possession.

Craftrule Ltd v 41-60 Albert Palace Mansions (Freehold) Ltd – 24.2.11 - [2011] EWCA Civ 185 – CoA
Collective enfranchisement – Sub-division of premises to be enfranchised - The premises consisted of two sets of 10 flats – The requisite number of qualifying tenants of the whole applied – only one of the sub-divided parts had the necessary number of qualifying tenants – The freeholder argued enfranchisement should operate by reference only to a self-contained part of premises that did not itself consist of self contained parts – The argument was rejected – Premises included premises that were themselves capable of further sub-division.

Irwin v Wilson – 23.2.11 - [2011] EWHC 326 – ChD, Sir William Blackburne
Conditional contract for the sale of land – Vendor required to use best endeavours to produce title documents – Provision for either party to serve notice to terminate if documents not produced by a specified date – Vendor served notice to terminate – Purchaser sought to waive the condition and require completion after Vendor’s notice served – The condition was capable of waiver by the purchasers – However the notice operated to terminate the contractual relationship immediately and accordingly subsequent waiver was too late and ineffective.

Everclear Ltd (BVI) v Agrest – 9.3.11 - [2011] EWCA Civ 232 – CoA
Property owned by company – Husband sole shareholder of company – Ancillary relief proceedings ongoing – Transfer of H’s shareholding to third party subject to the obtainment of mortgage finance – Subsequent order for preservation of the property s23 MFPA 1984 – Pending compliance with the condition precedent as to mortgage funding the property was still beneficially vested in H and accordingly susceptible to the preservation order.

ADM Milling Ltd v Tewkesbury Town Council – 16.3.11 – [2011] EWHC 595 – ChD, Lewison J
Common land & grazing rights – Right of sole vesture created by an Inclosure Act in 1808 fell with the meaning of “common” in s193 of the LPA 1925 – Parts of the land developed in a manner inconsistent with the right and ability to graze prior to 1925, without protest, had been released from the right.