Posted by: RM | May 29, 2009

The Law of Prescription

If ever proof were needed that not everything improves with age, one need look no further than the Prescription Act of 1832 to prove the point. A recent decision of the Court of Appeal in Housden v The Conservators of Wimbledon and Putney Commons illustrates this well. Lord Justice Carnwath’s comment at the end of his short judgment says it all:

At the highest from the appellant’s point of view, one is left with the position that, almost two centuries after the passing of the 1832 Act, there is no clear authority for the application of the section 2 in the way they propose, and a striking lack of consensus among the text-book writers.

It’s an interesting case about the acquisition of a prescriptive right of way over the common. The conflicting authorities on the proper interpretation and application of the relevant provisions of the 1832 Act are addressed in some detail.

Posted by: RM | May 29, 2009

Forfeit of Deposits

In the recent case of Aribisala v St James’ Homes (Grosvenor Dock) Limited the question of whether a deposit should be returned by the vendor upon the failure of a purchaser to complete a purchase of property was re-visited. The issue concerned the proper interpretation of section 49(2) of the Law of Property Act 1925 which confers upon the court a discretion to determine whether or not a deposit should be returned in such circumstances. In an earlier Court of Appeal case, Omar v El Wakil, the approach that a deposit should not normally be returned unless the circumstances were exceptional was adopted. It was followed in this case.

Posted by: RM | May 29, 2009

Purpose Trusts

There are many examples of purpose trusts in English Law, despite our best efforts to deny that we entertain such things. We all recognise that there are a limited number of anomalous categories of purpose trust whose existence is irrefutable but attributed to some human weakness and sentiment. These trusts are often referred to as trusts of imperfect obligation and include trusts for, inter alia, the upkeep of graves and the maintenance of horses and hounds.

We recognise the Re Denley type trust which has tenuous links to human beneficiaries and has thus been saved from falling foul of the beneficiary principle. Also, we have entertained the Quistclose Trust which is a further example of a trust for a purpose which is not concerned with human beneficiaries. In this latter context, however, justification for the existence of such a trust has been sought by its proponents by construing it as an orthodox example of a resulting trust. However, the recent High Court judgment in Cooper v PRG Powerhouse & Others recognises the Quistclose Trust for what it really is; a purpose trust. It’s too late now. The door is ajar.

Posted by: RM | May 29, 2009

Law Commission Consultation No 186

The Law Commission’s long awaited consultation paper on Easements, Covenants and Profits a Prendre is now available to view here. The consultation process is ongoing until 30 June 2008. Any reform in this context will no doubt be very welcome, although it will still be a long time coming. However, practitioners and students alike will breathe a sigh of relief at the prospect of any improvement in the law in this area. Whilst both the law of easements and covenants have been particularly problematic in many respects, the law of covenants is undoubtedly the most impenetrable.

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