Author Archive

Proprietary estoppel: Does detrimental reliance need to be incurred before the death of the promisor?

July 12, 2021

In Cheung Lai Mui v Cheung Wai Shing ([2021] HKEC 2263) the Court of Final Appeal had to consider whether, in proprietary estoppel cases, detrimental reliance had to be incurred before the death of the landowner who gave the assurance. If it did, they had to consider whether this requirement was satisfied in the present case.

The dispute concerned land in a village in the New Territories. The landowners in question were three brothers, each with a one third share in the land. D3 was the only grandson of the three brothers’ father.

There was a common understanding between the brothers, from the 1970s onwards, that D3 would inherit the land.

Knowing of this, D3, a building contractor, began building a wall around the property in the 1980s. D3 did further work in the early 1990s.

The death of the last of the brothers was in 1999. D3 erected two buildings and did improvement work at the property after 1999.

D3 inherited a one third share of the land. P was the executrix / administratrix of the other two thirds. She sought an order for sale of the land under the Partition Ordinance.

There were two questions:

(1) Did D3’s detrimental reliance have to have been incurred before the death of the brothers?

(2) If so, was the work that he did in the 1980s and early 1990s substantial enough to amount to detrimental reliance?

The Court of Final Appeal held that the detriment had to be incurred before the death of the landowner ([31]).

Where there were co-owners, the detriment had to be incurred before the last of the co-owners who gave the assurance ([33]).

Post-death events might be relevant to the form that the relief should take ([32]).

Implicitly, the Court of Final Appeal accepted that D3’s work before 1999 was detrimental reliance.

D3’s claim succeeded.

P held the two-thirds share on constructive trust for D3 who became, therefore, the sole beneficial owner ([38]).

Michael Lower

Philanthropy in the Age of COVID-19: Asian and Global Perspectives – Online conference – 22 July 2021

June 11, 2021

You might be interested in this online conference on Philanthropy in the Age of COVID-19: Asian and Global Perspectives (the fourth conference in the “Modern Studies in the Law of Trusts and Wealth Management” series).

The workshop is co-organised by the Centre for Commercial Law in Asia at Singapore Management University, the University of York, and the Asian Law Centre at Melbourne Law School, The University of Melbourne.

Details and registration link HERE.

The Home Ownership Scheme and beneficial ownership. 16 June 2021. Ms Phoebe Woo.

June 1, 2021

Dear All,

You are invited to a meeting of the online Property Law Discussion Group at 12.15pm on 16 June (Wed).

The speaker is Ms Phoebe Woo (BA and LLB. HKU; LL.M. Cambridge University; HKU Pre-doctoral Fellow).

Her topic is: ‘The Home Ownership Scheme and beneficial ownership’.

Participation is open to everyone with an interest in Property Law. It seeks, among other things, to give a platform for the work of Law students and alumni in the early stages of their careers. The Group hopes to have at least one or two meetings a month, perhaps more.

We can talk about any Property Law issues of interest to you.

There will be a brief 5 – 10 minute presentation and then discussion. The meeting will last for 30 – 45 minutes.

If you would like to attend, kindly register here by 5 pm, 15 June 2021.

We look forward to seeing you at the discussion group.

Best regards,

Faculty of Law,

CUHK

The seven deadly sins of trustee decision making – online seminar 23 June

May 28, 2021

Mr. Andrew Lynn will give the next in the CUHK Law Property Law seminar series on 23 June at 6pm (HK time).

Details and registration link here.

Michael Lower

Family and Wealth Disputes and the Lawyer’s Toolkit in Planning and Litigation – Property Law seminar (online) – 26 May 2021

May 20, 2021

CUHK Law is delighted to invite you to an online seminar by Professor Tang Hang Wu of Singapore Management University on Family and Wealth Disputes and the Lawyer’s Toolkit in Planning and Litigation at 6pm (Hong Kong time) on 26 May.

Registration link here.

Property Law Online Discussion – Ms Yasmine Zahir – Property claims for cultural property – 26 May 2021

May 20, 2021

A reminder of the meeting of the online Property Law Discussion Group at 12.15pm on 26 May (Wed).

The speaker is Ms Yasmine Zahir, Barrister-at-law, Liberty Chambers. Her topic is: ‘Treasure Hunting for the Golden Buddha’ and her presentation looks at property claims for cultural property.

Participation is open to any students and alumni with an interest in Property Law. The Group hopes to have at least one or two meetings a month, perhaps more.

We can talk about any Property Law issues of interest to you.

There will be a brief 5 – 10 minute presentation and then discussion. The meeting will last for 30 – 45 minutes.

If you would like to attend, kindly register here by 5 pm, 25 May 2021.

You might also want to sign up for the forum at Property Law Discussion Group | iipl (cuhk.edu.hk) to stay in touch and participate in online discussions.

We look forward to seeing you at the discussion group.

Best regards, 

Faculty of Law

The Chinese University of Hong Kong

Demands for rent and waiver

May 15, 2021

In Greenwood Reversions Ltd v World Environment Foundation Ltd ([2008] EWCA Civ 47) the English Court of Appeal (Thomas LJ delivering the judgment) had to consider whether letters from a landlord’s solicitor to the assignor of a lease amounted to a waiver of the right to forfeit.

The long lease of a flat was vested in M. The lease required the landlord’s consent (not to be unreasonably withheld) to any assignment.

M. fell into arrears with the rent and then assigned the lease to WEF without obtaining the landlord’s consent.

The landlords’ solicitors wrote to M to say that forfeiture proceedings would be brought unless the landlords received the pre- and post-assignment arrears. The letter was copied to WEF (who later reassigned the flat to M, again without consent).

M contended that the letters from the landlord’s solicitors amounted to a waiver of the breach of the prohibition on assignment without consent (applying the test propounded by Neuberger J. in Yorkshire Metropolitan Properties Ltd v Co-Operative Retail Services Ltd ([2001] L& TR 26 at [91]).

Thomas LJ assumed, without deciding, that an unqualified demand for future rent would operate as a waiver ([27]).

Even on that assumption, there was no waiver first because the demand was addressed to M (the assignor) not WEF (the assignee and actual tenant at the time of the letters) ([28]).

More important, the letters were not ‘an unqualified demand’:

‘What the letter to Dr Mehra said was that, unless the sums enumerated in the letter (which included the unpaid judgment sum, interest and costs of the first action against Dr Mehra) were paid, proceedings which would include a claim for forfeiture, would be taken. The letter made it quite clear that it was only on payment of the rent that the landlord would accept the tenancy as continuing.’ ([29]).

Michael Lower

Property Law Online Discussion – Ms Yasmine Zahir – Property claims for cultural property – 26 May 2021

April 14, 2021

Dear All,

You are invited to a meeting of the online Property Law Discussion Group at 12.15pm on 26 May (Wed).

The speaker is Ms Yasmine Zahir, Barrister-at-law, Liberty Chambers. Her topic is: ‘Treasure Hunting for the Golden Buddha’ and her presentation looks at property claims for cultural property.

There will be a brief presentation and then discussion. The meeting will last for 30 – 45 minutes.

If you would like to attend, kindly register here by 5 pm, 25 May 2021.

You might also want to sign up for the forum at Property Law Discussion Group | iipl (cuhk.edu.hk) to stay in touch and participate in online discussions.

The organisers are especially interested in allowing law students and recent alumni to present their work.

We look forward to seeing you at the discussion group.

Best regards, 

CUHK Faculty of Law

Property Law seminar – 26 May 2021 – Professor Tang Hang Wu

April 13, 2021

The upcoming Property Law seminar Family and wealth disputes and the lawyers’toolkit in planning and litigation will be fascinating.

See this link for more details and the registration link.

Prescriptive easements: deciding on whether user was as of right

March 30, 2021

In Poste Hotels Ltd v Cousins [2020] EWHC 582 (Ch) the court had to consider a claim to have acquired by prescription a right to park in a particular place in a private street by a person (Cousins) who had a house in the street. It mattered because Poste Hotels had a right of way over the street to the rear entrance to the hotel. The space over which the defendant claimed the car parking right was in front of the hotel entrance. Exercise of the right claimed would prevent the hotel from using the entrance.

Poste Hotels argued that there was an alternative explanation for the defendant’s parking right; this was that any member of the public could park in the street. The defendant’s use of the street for car parking was the same as any other member of the public.

Morgan J. explained how this kind of dispute should be approached:

‘Where the court is asked to choose between two explanations for the user both explanations must produce the result that the user was lawful. Where there are said to be two explanations for the user, each of them involving a lawful origin for the user, one has to ask whether both explanations are reasonably possible. If there are two reasonably possible lawful origins then the position is as stated in Gardner v Hodgson’s Kingston Brewery Company [1903] AC 229 per Lord Lindley at 239: “[i]f the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established ..” ‘ ([35])

In this case, however, there was no alternative lawful user that could account for the use of the street for car parking; the street was not a public highway so it was unlawful for members of the public to park there ([43]). In any event, the grant of an easement was, in the circumstances, the more likely explanation ([50]).

On the facts, the defendant was able to prove a prescriptive right to park in the street but not specifically in the space in front of the hotel entrance.

Michael Lower