Weekly review: 16th – 20th January 2012

Chinese customary trusts

In the context of an indigenous clan in the New Territories, an orally transmitted history or a history recorded in a genealogy is good evidence concerning the membership and customs of a Tso  (Kan Yam Yau v Kan Yook Tim).

Leases: effect of deed of variation

A deed of variation of a lease only amounts to a surrender and re-grant where the legal estate has been altered (perhaps this can only be done by altering either the premises or the term). An assignee of the lease might agree to significant variations of the terms of the lease. In principle, the original tenant remains liable for the personal obligation in the original lease terms (but in Hong Kong section 41(8) of the Conveyancing and Property Ordinance releases assignors from liability for post-assignment breaches of covenants that fall within section 41(2)). Of course an original tenant could agree to be liable for post-assignment breaches (of the original and / or varied lease terms) (Friend’s Provident Life Office v British Railways Board).

Leases: termination: repudiatory breach

A lease is a contract and like any other contract can be brought to an end by acceptance of the other party’s repudiatory breach. Statutory and contractual provisions affecting the right to recover possession apply in such cases as they do to forfeiture (Hussein v Mehlman).

Proprietary estoppel

Where reliance is reasonable, the burden of proof is on the person denying the causal link between the reliance and the detriment (Ottey v Grundey).

Waiver: Collateral contract: promissory estoppel

In Brikom Investments Ltd v Carr a landlord induced tenants to take long leases in a building with roof problems by promising them that the cost of repair would not be passed onto them through the service charge. Tenants and their assignees could enforce this promise on the basis of collateral contract, waiver or, thought Lord Denning, promissory estoppel.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: