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Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Adverse possession and leases

This is one of four Lexis®PSL Practice Notes on adverse possession. The others are:•Establishing adverse possession of land•Claiming title by adverse possession under the Limitation Act 1980 or the Land Registration Act 1925•Claiming title by adverse possession under the Land Registration Act 2002Adverse possession of the demised premises by a squatterThe tenant’s positionA squatter will extinguish a tenant’s title to the demised premises if the squatter can show adverse possession for an uninterrupted period of at least twelve years:•at any time (where the lease is unregistered), or•before 13 October 2003 (where the lease is registered)As a result, the squatter will be entitled to apply to be registered as the proprietor. For further information, with particular reference to the position where the lease is unregistered, see HM Land Registry Practice Guide 5, para 7.1.In the case of an unregistered lease, the relevant provisions are the Limitation Act 1980 (LA 1980) ss 15, 17 and Sch 1. In the case of a registered lease where the squatter can show adverse possession for...

Buyer’s contract negotiation guide—title and encumbrances

Buyer’s contract negotiation guide—title and encumbrances Are title clauses just standard ‘boilerplate’? Many commercial property contracts will deal with title matters in a similar way and often there is little scope or need to amend the clauses if the title is straightforward and nothing bespoke is required. However, it is important to be clear on the effect of the clauses, the legal background, how they apply in particular scenarios and their interaction with the buyer’s due diligence. Key legal principles for sellers and buyers of property We consider here the fundamental legal principles of the buyer-seller relationship. Implied obligation selling free from encumbrances There is an implied obligation that the seller is selling a freehold estate free from encumbrances. This can only be rebutted in three ways: • by express contractual provision • if the buyer knows (actual knowledge) that there is an irremovable encumbrance, or • if there is a patent (ie visible) defect in title (although this is overridden if the seller expressly agrees...

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Share purchase agreement—pro-buyer—corporate seller—conditional—long form

Share purchase agreement—pro-buyer—corporate seller—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of selling corporate entity] incorporated in [England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Seller); 2 [Insert name of purchasing corporate entity] incorporated in England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Buyer), and 3 [Insert name of guarantor entity] incorporated in England and Wales OR [insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Guarantor) [(each of the Seller, the Buyer and the Guarantor being a Party and together the Seller, the Buyer and the Guarantor are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in [England and...

Share purchase agreement—pro-buyer—individual sellers—conditional—long form

Share purchase agreement—pro-buyer—individual sellers—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 The several persons whose names and addresses are set out in Schedule 1 (together the Sellers), and 2 [Insert name of purchasing corporate entity] incorporated in [England and Wales OR [Insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Buyer), [(each of the Sellers and the Buyer being a Party and together the Sellers and the Buyer are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in[ England and Wales OR [insert country of incorporation]]. Details of the Company are set out in Schedule 2, Part A. (B) The Sellers are the legal and beneficial owners of the Sale Shares (as defined below), being in aggregate the entire allotted and issued share capital of the Company. (C) The Sellers have agreed to sell and the...

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A private road is used to access a block of flats. The leases of the flats have a right of way over the road. The developer company who built the flats retained the private road but the company was dissolved in the 1970s. The management company of the flats owns the freehold to the block of flats. It has actively maintained and exercised control over the road for at least 30 years. Can the management company apply for title by way of adverse possession of the private road even though the flats have an express right of way over the road? If adverse possession is not possible, how can the management company acquire the freehold to the road?

A private road is used to access a block of flats. The leases of the flats have a right of way over the road. The developer company who built the flats retained the private road but the company was dissolved in the 1970s. The management company of the flats owns the freehold to the block of flats. It has actively maintained and exercised control over the road for at least 30 years. Can the management company apply for title by way of adverse possession of the private road even though the flats have an express right of way over the road? If adverse possession is not possible, how can the management company acquire the freehold to the road? This Q&A raises a number of issues: the acquisition of freehold title by adverse possession where the owner is the Crown, the nature and extent of rights of way and the extent to which they can prevent adverse possession arising. In the present case, a developer built a...

Has there been a presumed dedication of land as a highway if a street lamp has been erected on a verge which HM Land Registry notes is under a separate title number? Is there anything that can be done to rectify the discrepancy?

Has there been a presumed dedication of land as a highway if a street lamp has been erected on a verge which HM Land Registry notes is under a separate title number? Is there anything that can be done to rectify the discrepancy? Highways can be created at common law or by statute. It is not possible to say whether this is a presumed dedication situation, and the buyer would need further enquiries to ascertain that. For further information, see Practice Note: Statutory adoption of highways: Maintenance responsibility. Potential issues Understandably a landowner may prefer there to be no public rights over his or her land. More significant issues potentially arise if the fence mentioned in the question is erected on or blocks part of the highway. Issues could include (but are not limited to) the following: • under section 130 of the Highways Act 1980 (HiA 1980), a highway authority has a duty to assert the right of public to use and enjoy highways and...

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Property Disputes weekly highlights—12 December 2024

This week's edition of Property Disputes weekly highlights includes: a High Court decision granting a final injunction against protestors, Upper Tribunal decisions on whether communal electricity charges that did not account for the use of solar panels were reasonably incurred, the threshold for unreasonable behaviour capable of justifying an order for costs, and calculation of ‘internal floor area’ for the purposes of the right to manage. It also includes the 178th Practice Direction update to the Civil Procedure Rules, the Ministry of Justice’s decision to publish the names of claimants of money judgments on the Register of Judgments, Orders and Fines in England and Wales, and amendments to the First-tier Tribunal and Upper Tribunal (Chambers) Order.

Property Disputes weekly highlights—5 December 2024

This week's edition of Property Disputes weekly highlights includes: Court of Appeal decisions on the Tenant Fees Act 2019 and estoppel in an adverse possession claim, High Court decisions concerning occupiers’ liability, mesne profits, and non-payment of a court fee when issuing a lease renewal claim, and Upper Tribunal decisions on modification of a restrictive covenant and the application of non-domestic rates to barristers’ chambers. It also includes the publication of the Ministry of Housing, Communities and Local Government (MHCLG)’s new Remediation Acceleration Plan (RAP), the MHCLG’s consultation on permitted insurance fees for landlords and freeholders, and the Supreme Court and Privy Council’s new websites and online Case Management Portal.