Weekly Review: 21st – 25th November

Co-owners: duty of one co-owner to account to the other for rents received

Where one co-owner collects rents the mere fact of being co-owners does not give rise to a liability to account to the other co-owner(s). A liability to account to the other for the latter’s share arises where the former is the agent or bailiff of the latter. It can also arise in partition actions (or actions that are equivalent), administration actions, in other cases where there is a fund in court, where the court makes an order for sale as an alternative to partition or where one party claims an interest under a resulting or constructive trust and the court is asked to quantify that interest (Chen Yu Tsui v Tong Kui Kwong).

Easements: proprietary estoppel: constructive trusts: Lyus v Prowsa: priorities

Lyus v Prowsa will rarely operate to make an informally created interest in land bind a purchaser where there is no specific reference to the interest in the sale to the purchaser and the interest should have been registered but has not been registered (Chaudhay v Yavuz).

Incorporated owners: the Building Management Ordinance

Section 17(1)(b) of the Building Management Ordinance empowers the Lands Tribunal to give leave for the execution against any owner of a judgment given or order made against a corporation. In this context, ‘owner’ means any owner for the time being. Very large and unanticipated liabilities of the corporation that have not been disclosed in the contract are encumbrances. They amount to a defect in title and this title cannot be forced on a purchaser in the absence of a clear contractual provision to the contrary (Chi Kit Co Ltd v Lucky Health International Enterprise Ltd).

Proprietary estoppel

It will rarely be possible to invoke proprietary estoppel to enforce assurances given in subject to contract negotiations. It may be possible where the contract is one part of a wider scheme that has already been partially implemented (Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council).

Proprietary estoppel

Where a lease provides that the landlord’s prior written consent is needed to an assignment, the landlord will only be estopped from refusing consent where he has given a clear assurance and the cisrcumstances are such that it would be unconscionable for him to be able to resile from that assurance (Willmott v Barber).


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