Archive for the ‘Weekly review’ Category

Weekly Review: 2nd – 5th April

April 6, 2013

Leases: licences: possession: service occupancy

When it is contended that occupation of a particular property is essential for the performance of the employee’s duties, it must be established that only occupation of that particular property would suffice (Langley v Appleby)

Where an existing employee undertakes new duties and is offered accommodation by the employer provided that he undertakes those duties (the performance of which will be materially assisted by residence in the employer’s accommodation) then the employee is a service occupier and the employer retains possession (Norris v Checksfield)

 

 

Weekly review: 25th – 28th March 2013

March 30, 2013

Leases: licences: possession: service occupancy

An employee’s occupation of property of his employer is in possession if either

(i) the occupation was necessary for the performance of his duties as employee, or

(ii)

(a) he was required by the terms of the contract or by the employer’s decision made in accordance with those terms to live in the house, and

(b)  this was for the better performance of his duties.

(Glasgow Corporation v JohnstoneCommissioners of Valuation for Northern Ireland v Fermanagh Protestant Board of EducationWragg v Surrey County CouncilFox v Dalby)

The phrase, ‘for the better performance of his duties’  invites a consideration of the parties’ intentions when including the express term in the contract. The intention is an objective intention: there is a need for a real, objective link between the requirement and the better performance of the duties.

‘Better’ does not mean ‘efficient’. It is a true comparative. The question is whether the inclusion of the term rests on a reasonable judgment that performance of the duties would be materially assisted by the occupation (better with the occupation than without it). (Wragg v Surrey County Council).

Weekly review: 18th – 22nd March 2013

March 23, 2013

Adverse possession: possession

There is no adverse possession where there is insufficient evidence of possession itself (Tang Ching v Wu Wan Yau)

Leases: essential elements

When seeking to argue that an agreement (perhaps disguised as a partnership or employment agreement) gives rise to a lease, the would-be tenant must identify and prove the demised premises, the term and the intention to create a lease with the necessary degree of certainty and on the balance of probabilities (Chau Yu v Kwan Chuen Kuen (No 2))

Leases: exclusive possession

There is  no exclusive possession where the purposes underlying the agreement could not be achieved if the occupier had exclusive possession nor wherethe restrictions imposed on the occupier are incompatible with exclusive possession (Westminster City Council v Clarke)

Weekly review: 11th – 15th March 2013

March 16, 2013

Agreement that tried but failed to create a lease

An agreement having the essential elements of a lease, that intended to create a lease valid at common law but which was not under seal can still take effect as an equitable lease (Parker v Taswell).

Leases: certainty of term

A lease is invalid if there is no certainty of term (Say v Smith).

Leases: contractual intention

Where the parties to an arrangement lack contractual intent there is no lease (Chan Yeung Kei v Chan Yeung Fai).

Leases: essential elements 

Exclusive possession and a certain term are the essential elements of a lease (Radaich v Smith and Best Sharp Development Ltd v Lucky Shoe Repairing & Key Duplication Centre).

Weekly review: 4th – 8th March 2013

March 9, 2013

Leases: Service Charges: Landlord and Tenant Act 1985 (England): consultation

A dispensation from the consultation requirements of section 20 of the Landlord and Tenant Act 1985 should be available where the extent, quality and cost of the works were not affected by a failure to comply with the requirements. The question is whether the tenants suffered real prejudice as a result of the breach. The leasehold valuation tribunal can grant a dispensation on such terms as it sees fit provided they are appropriate in their nature and extent. It is legitimate to require the landlord to pay the costs incurred by the tenant in opposing an application for dispensation. The onus would be on the tenant to show some ‘relevant ‘ prejudice (Daejan Investments Ltd v Benson).

Loan agreement: death

The debtor’s liability under a loan agreement does not end on death and the creditor can claim against the estate (Lam Ching Sheung v P.R. of the Estate of Tam Shui).

Proprietary estoppel: statutory time limit

Proprietary estoppel is not available to prevent a tenant from pleading that a statutory notice was served out of time by a landlord (Newport City Council v Charles).

Weekly review: February 25th – March 1st 2013

March 2, 2013

Contracts: formalities (England)

All of the terms of a contract for the sale or other disposition of an interest in land must be in writing. If a contract is invalid, the fact that some of its terms are performed does not mean that the remaining terms have legal effect (Keay v Morris Homes (West Midlands) Ltd)

Contracts: deposits: recovery of deposit where contract for sale of land is void

Where a land contract is void, whether any deposit that has been paid is recoverable depends on the agreement of the parties concerning the deposit (Sharma v Simposh Ltd)

Deed of Mutual Covenant: Land covenants: liability

A successor-in-title is liable in respect of a continuing breach of a restrictive covenant initiated by a predecessor-in-title (Wah Fai Court (IO) v Lee Man Ho Joseph)

Easements by prescription

The existence of an express or implied licence has to be proved in the usual way (London Tara Hotel Ltd v Kensington Close Hotels Ltd

Encroachment on unleased Government land

Time did not start running again in July 1997 against the Hong Kong government for the purposes of the operation of the doctrine of encroachment (Lee Bing Cheung v Secretary for Justice)

Weekly Review: 18th – 22nd February 2013

February 23, 2013

Contract: breach: waiver

Making arrangements for completion of a contract cannot amount to a waiver of a contractual right of termination unless what is said and done amounts to an unequivocal communication that the right to terminate will not be exercised (Lancashire Insurance Co Ltd v MS Frontier Reinsurance Ltd)

Deed of Mutual Covenant: construction

The Deed of Mutual Covenant is the primary guide when deciding on whether part of a building is or is not a common part. In particular, it prevails over any description of a part of the building as being for exclusive use found in a later assignment (Chow Sai Ping v Chan Yam King)

Nuisance: planning consent: change in the character of a locality

The grant and implementation of a planning consent can change the character of a locality and this changed character can be relevant when deciding on whether or not a nuisance has been committed (Lawrence v Coventry (t/a RDC Promotions))

Weekly Review: 14th – 15th February 2013

February 16, 2013

Constructive trustees: Limitation Ordinance

Section 20(1) of the Limitation Ordinance (no limitation period in respect of actions by beneficiaries against trustees) only applies to ‘true’ constructive trustees and not those who are strangers to the trust but become constructive trustees by virtue of some act of dishonest assistance with a breach of trust (Rose Palace Ltd v Jung Christopher Lam).

Landlord and tenant: sureties: disclaimer (English law)

Disclaimer of a lease by a liquidator (pursuant to s.178 of the Insolvency Act 1986) or  by the Treasury Solicitor after dissolution of a corporate tenant does not bring an end to the liability of a guarantor of the tenant’s obligations (RVB Investments Ltd v Bibby).

Weekly Review: 4th – 8th February 2013

February 9, 2013

Adverse possession: Tso

Each member of a Tso or Tong has his own lifetime equitable interest that is not derived through the managers or any other person. Each member’s equitable interest gives a right to possession. The interest can be defeated by adverse possession but, until it is, the holder of any such interest can bring possession proceedings (Leung Kuen Fai v Tang Kwong Yu). Where there remain one or more equitable interests that have not been defeated by adverse possession, the estate of the managers is not defeated. This is the result of section 10(2) of the Limitation Ordinance (Wong Shing Chau v To Kwok Keung).

Conveyancing: enforcement measures: title

Where the risk of enforcement measures being taken by a Governmental authority is small the risk is unlikely to constitute a defect in title. The seller may be required to make reasonable financial arrangements to protect the buyer against the risk of having to incur any part of the eventual cost of carrying out the measures (E-Global Ltd v Trenda Ltd).

Weekly Review: 28th January – 1st February 2013

February 2, 2013

Chinese customary law: variation by statute: posthumous adoption

Chinese customary law can be modified by statute. Posthumous adoption is no longer possible in Hong Kong (Liu Ying Lan v Liu Tung Yiu).

Chinese customary trusts; distributions: duty of managers

The manager of a Tso acts reasonably in relying on the records of the Tso before making distributions. There is no duty to conduct a full enquiry as to the membership of the Tso before making a distribution (Tang Chun Kit v Tang Lo Ping).

Estoppel and public policy

An estoppel can operate to modify the application of statutory provisions unless  the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise (Kok Hoong v Leong Cheong Kweng Mines Ltd).

Tong / Tso property: ownership

A person is a member of a Tong or Tso while he is alive. His interest does not descend to his son as if it were a case of succession to family property. The membership and ownership interest arise on birth and cease on death (Lee Sun Kiu v Ho Kay Fuk).