Posted by: RM | May 31, 2009

What’s New?

I cannot possibly hope to give an overview here of what’s new in all of property law. However, I can bring this blog a little more up to date with a brief commentary on some recent decisions which have interested me and which I have written about, together with a brief explanation of what is so interesting about them. Looking also to the future, however, I keep a pretty close eye on new decisions, reports and consultations of one sort or another and will discuss them as and when they appear on my regular updates, so the commentary should very soon begin to cover a broader range of topics than those which are within my immediate range of research interests.

Proprietary Estoppel

The recent House of Lords decision in Thorner v Majors is a significant one in the sense that it reconfirms the fact that the doctrine is alive and well, despite last year’s decision in Yeoman’s Row Management Ltd v Cobbe which, it had been suggested by some, signified the near death of the operation of the doctrine of proprietary estoppel. In Thorner their Lordships were concerned to point out the appropriateness of a context sensitive approach which should be adopted by the courts, especially where familial relationships are at the centre of the claim, these being factual scenarios which are notorious for their lack of any kind of formal agreement. Their Lordships, Lord Neuberger in particular, were also careful to distinguish Cobbe and to articulate the general limitations of the circumstances in which the approach adopted in that case is to be applied. Most notably, it was recognised that in Cobbe it was not clear what right or interest Mr Cobbe had expected to receive, pursuant to any representation made on behalf of YRM Ltd. It was also considered very pertinent to that decision that the parties were both commercial entities who had struck a commercial bargain at arm’s length.

Much of this is unsurprising but the Thorner decision did re-introduce some clarity to a topic which had undergone a temporary moment of uncertainty. One of the more interesting and rather more surprising aspects of the decision was introduced by Lord Scott who, when considering the remedies which were available to Mr Thorner, considered that he would be more comfortable regarding the claimant’s equity as being established under a remedial constructive trust (para[14]). Lord Scott referred to Gissing v Gissing as being a case in which the courts had recognised the remedial constructive trust as being created by the common intention or understanding of the parties. This is not correct. The type of constructive trust which was recognised in Gissing v Gissing became commonly known as the common intention constructive trust. The common intention constructive trust has, on occasion, been roundly criticised as being an example of a trust arising on the basis of imputed intention rather than inferred intention. However, it was never referred to in that case as being a remedial constructive trust and the English jurisdiction has never accepted that a constructive trust is a recognised species of judicial remedy. This is entirely consistent with the orthodox position that remedial constructive trusts do not exist in English Law, Re Polly Peck (No 2) [1998] 3 All ER 812.

Postscript: To view a piece I wrote for the New Law Journal on this decision click here.

New Town and Village Greens

This is likely to be the first of many posts on this topic over the coming months and years. To the uninitiated among my readers it may seem a rather eccentric topic and may also be perceived as narrow and unlikely to produce much in the way of “new developments”. This, in fact, could not be further from the truth. The law relating to the registration of new greens has, in recent years, been an area of unusually intense judicial activity for reasons which I will explain more fully at a later date. However, a recent judgment of the Court of Appeal has, depending upon which way you choose to look at it, clarified or confused the test for succeeding in an application for the registration of a new green.

To succeed in an application for registration it is necessary to establish that user of the land has been “as of right”. This is the standard test for the acquisition of rights over land by prescription. However, it has become clear in recent years that, in the context of new greens at least, the as of right test is more complicated than requiring use which is simply nec vi, nec clam, nec precario (without force, without stealth, without permission). The Court of Appeal’s recent decision in R (On the aplication of Kevin Lewis) v Redcar & Cleveland Borough Council has confirmed the relevance of the deference of the recreational users to the landowner’s use of his land in the context of such a claim. In fact, in Lewis v Redcar, despite the fact that the recreational use was nec vi, nec clam, nec precario and was trespassory, another requirement of the as of right test, the deference of the recreational users was sufficient to defeat the application for registration. This decision and its reasoning merits closer scrutiny which I will endeavour to provide at some later date, but it is still possible at present that this decision will be appealed to the House of Lords. If it is it will be the fourth new green registration case to come before the highest court in the land in a decade.

Postscript: I have written about the relationship between user as of right and deference here.

Forfeiture of Deposits

This is a topic about which there is an earlier post, specifically referring to the decision in Aribisala. Since that decision of the High Court the Court of Appeal has had an opportunity to consider this topic in the case of Midill (97PL) Limited v Park Lane Estates Limited. This recent decision of the Court of Appeal is useful in that it clarifies the approach which the court should take, namely that a deposit paid in repsct of the sale of land should not normally be returned in the case of default by the purchaser unless there are very special circumstances for ordering its return. This represents a pretty strict application of the law but one which is entirely consistent with the fact that a deposit paid in relation to a sale of land was always regarded as an earnest for perfomance and should not be returned where the purchaser fails to complete the sale. I wrote a short piece on this for the NLJ (“Show me the money“) but I also wrote a longer, more detailed analysis for publication. As is often the way of things, when it was submitted I had been pipped at the post by the editor of the journal to whom I submitted! Once I have figured out how to create a page onto which I can upload the text of that piece I shall do so and put in a link from this post.


  1. […] nec precario (without force, without stealth and without permission) which is discussed briefly below in the context of a recent decision of the Court of Appeal in Lewis v Redcar. However, rather more […]

  2. […] Lords’ decision in Thorner v Majors [2009] UKHL 18 (for an earlier discussion of this case see here) the High Court has, in MacDonald & Bannigan v Frost [2009] EWHC 2276 (Ch) (no link yet),  […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: