Weekly review: 3rd – 7th October

Contract: vacant possession

When a seller contracts to sell with vacant possession, this requires not only that there be no third party with a legal claim to possession but also that the buyer be given actual unimpeded physical enjoyment (Cumberland Consolidated Holdings Ltd v Ireland ).

Deed of Mutual Covenant: charge over owner’s share as security for sums owed by the owner

Where the Deed of Mutual Covenant provides that the shares of an owner stand charged with any sums due from the owner under the DMC, the charge has to be created in writing but equity can dispense with the need for the signature of the owner (Beacon Heights (Management) Ltd v Leung Ping-Hung, Antonio). 

Deed of Mutual Covenant: right to enter private areas to repair common parts

Where a Deed of Mutual Covenant gives the managers the right to enter the land of an owner and the owner refuses entry or imposes unwarranted requirements or restrictions then the managers can be granted a mandatory injunction to give them the access they need (The Incorporated Owners of Tak Wing Industrial Building v Poon Chi Hung William).

Leases: forfeiture: waiver

A landlord impliedly waives a breach of covenant (and so loses the right to forfeit the lease because of it) where knowing the relevant facts he does anything that acknowledges the continued existence of the lease (Cornillie v Saha).

Leases: relief from forfeiture

The court has the power under the High Court Ordinance and its inherent equitable jurisdiction to grant relief from forfeiture for non-payment of rent on more than one occasion (Far East Land Holdings Ltd v Empire Asian Ltd).