Archive for the ‘Right of support’ Category

Weekly review: 18 – 23 July

July 23, 2011

From now on, Saturday’s posting will not be a new case but a round-up of the new postings from the previous week. The round-up will give a summary of the blog posts and sometimes some of the context relating to them.

Easements of necessity are based on intention

When A transfers part of his land to B, an easement of necessity might be implied into the transfer where otherwise the land could not be put to any use without the claimed easement. The easement is implied because the court decides that the parties must have intended that the land could be put to some use. Where the transfer makes it clear that no grant of an easement is intended there can be no easement of necessity Nickerson v Barraclough.

Dealings with property acquired under Hong Kong’s Home Ownership Scheme

Hong Kong’s Home Ownership Scheme aims to help people get onto the housing ladder. Property held under the scheme can be co-owned and can be sold but there are conditions and procedures to be observed. As Cheung Shu Yin v Yip So Wan illustrates, failure to observe the relevant procedure results in the alienation (here the creation of an interest under a resulting trust) being void.

Licensee may be estopped from denying licensor’s title

A licensee who knew the nature of the title claimed by the landlord when accepting a license is estopped from denying that title (Terunnanse v Terunnanse). So if the licensee has any doubts and may wish to raise them he should do so sooner rather than later.

Priority of charging orders

Charging orders have to be re-registered every five years and then take effect for a further five years from the date of re-registration. They retain priority as from the date of registration and not the subsequent re-registration (Incorporated Owners of Century Centre v Bank of China (Hong Kong))

The right of support and protection from the weather

Terraced or semi-detached properties may be so designed that they rely on each other for structural support. If this situation persists for long enough, an easement of support can be claimed based on prescription. This right of support includes a right to protection from structural damage caused by the impact of the weather on the support enjoyed by the remaining property (Rees v Skerrett) even though there is no general right to protection from the weather (Phipps v Pears).

Scope of the right of support from an adjoining building

July 19, 2011

Where one building enjoys a right of support in respect of  its neighbour and that support is removed without adequate replacement then the neighbour can be liable in respect of damage caused to the dominant tenement by wind flows. This is not a separate easement of protection from the weather but an aspect of the right of support. Further, when the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.

Rees v Skerrett ([2001] EWCA Civ. 760, CA (Eng)) concerned two houses 14 and 14A Hastings Street Plymouth. They were divided by an internal wall. It was acknowledged that 14 had a right of support from 14A. 14A was demolished by its owners but nothing was done to shore up the (now exposed) wall to replace the support that 14A had provided. As a result, the flow of wind around the property severely damaged number 14. In Phipps v Pears it had been decided (in a case where there was no right of support) that there was no easement of protection from the weather. Nevertheless, it was decided that the owner of 14A was liable for the damage caused. The right to protection from the damage caused by the flow of wind around the property was an aspect of the right of support. It was also decided that the owner of 14A was liable in negligence. When the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.