Weekly Review: 31st October – 4th November

Building Management Ordinance: Incorporated Owners: common parts: waiver: easements

Incorporated owners do not have the power permanently to waive the obligation on owners to observe the terms of the DMC. Owners do not have an easement over any part of the property in their co-ownership (Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building Mongkok Kowloon (IO) ).

Common intention constructive trust: the whole course of dealing

It may be that a common intention constructive trust can be inferred from the whole course of dealing between the parties (Hapeshi v Allnatt).

Conveyancing: requisitions

A seller’s solicitors should not answer late requisitions merely out of courtesy. Where the requisition is clearly out of time, the seller’s solicitors should either refuse to answer it or should make it clear that the answer is ‘without prejudice’ to their right to take the point that the buyer was out of time and had no right to raise the requisition. The burden of proof is not on the buyer to show that there is a problem with title. The burden is on the seller to show beyond reasonable doubt that the title is good. The standard to be employed is whether an experienced and prudent solicitor could advise that the buyer was not subject to the risk of the successful assertion against him of any encumbrance (Chinawell Management Ltd v Strong Huge Corp Ltd).

Proprietary estoppel: contractual negotiations

Statements (made expressly or inferred from passive encouragement) under a ‘subject to contract’ umbrella can hardly ever give rise to a proprietary estoppel claim since they do not amount to an assurance and cannot be relied on (the parties understand that either can withdraw from the transaction). On the other hand, proprietary estoppel has been successfully invoked in response to assurances that property will be left to B in A’s will and B has relied on this. Yet the parties know that these statements too can in principle be withdrawn at any time before the landowner dies. There is a clear tension between these positions (Gonthier v Orange Contract Scaffolding Ltd).

Proprietary estoppel: contractual negotiations

Even if a landowner has given an assurance that a deal will be carried through, and the subject to contract barrier can be overcome, there is a need to show detrimental reliance. Acts done in anticipation of a contract may not count if they would have been carried out anyway in the hope of the deal being concluded (Pakwell Investment Ltd v CRC Department Store).

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