Posts Tagged ‘ouster’

Ouster and car parking: applying Batchelor

May 12, 2017

In Kettel v Bloomfold Ltd ([2012] EWHC 1422) the claimants were long leaseholders of flats in a development. Their leases granted them the right to park in the car parking space identified in the lease. The developers wanted to allocate them new spaces and build on the existing spaces. The developers fenced off the area that they wanted to build on and enclosed the spaces. The flat owners sought an injunction to restrain this interference with their car parking rights.

The owners argued that they had either a lease or an easement of the space. It was agreed on all sides that, if there was no lease,  they had an easement. The judge (HHJ David Cooke) found that there was no lease. Despite the fact that the parties agreed that there was an easement, he considered whether the ouster principle prevented the flat owners from having an easement.

Moncrieff had not overruled Batchelor v Marlow and the judge accepted that Batchelor was binding on him: the test was whether the exercise of the car parking right left the developer with no reasonable use of the car parking space. It was a question of fact in each case whether the right granted made ownership of the servient land illusory.

In this case, the developer could pass over the space on foot when there was no car parked there and could authorise others to do so: it had granted such rights to pass over the spaces to other tenants in the leases to them. It could change or repair the surface, arrange for service media to pass under, or wires to pass over, the space. It could build over the space (and had made plans to do so). These rights had importance and value to the developer in managing the estate ([24]). The ouster principle was not infringed.

The flat owners were entitled to an injunction to restrain the actual and threatened interference with the car parking rights. This was not one of these exceptional cases where damages should be awarded instead. It would not be right to expropriate the car parking rights.

The judge held that if, contrary to his view, damages were to be awarded then they should be more than purely nominal. Even assuming that the flat owners were given an equivalent car parking space, they were entitled to damages on a release fee basis:  the flat owners should be awarded a sum that would be negotiated between willing parties for the right to build on the spaces ([61]).

Michael Lower

Legal joint tenancy: determining beneficial ownership under a common intention constructive trust

March 11, 2015

In Lo Kau Kun v Cheung Yuk Yun ([2015] HKEC 316, CFI) a married couple bought a flat as joint tenants. P claimed that the property was held on common intention constructive trust in equal shares. D claimed that she was the sole beneficial owner. Deputy Judge Sakhrani referred to the statements in Stack v Dowden ([68] in Stack) and Jones v Kernott ( [51] in Jones) to the effect that where the legal title is in joint names and there is a question as to beneficial ownership equity follows the law (so that a legal joint tenancy gives rise to equal shares) but that it may be possible to show a contrary intention (the burden of proof being on the party seeking to establish this). P had paid the down payment. P and D were jointly liable under the terms of the mortgage and each had contributed to the mortgage payments. Crucially, there was a finding that the parties had discussed their intentions concerning the ownership of the property ([63]). The couple had agreed that the property was to be a family asset (to be held equally as a family asset according to P) ([64]). This (not the record of financial contributions) was determinative. The property was held on common intention constructive trust in equal shares ([66]).

D also argued that she had extinguished P’s title by adverse possession. P had left the property in 1993 after a violent argument and never returned ([77]). This argument failed since D was entitled to be in possession as co-owner. There was no evidence of the ouster that would be necessary for this claim to succeed ([81]).

Michael Lower

Creation of a Chinese customary trust. Adverse possession as between co-owners

September 5, 2013

In Tang Tak Sum v Tang Kai Fong ([2013] HKEC 1159, CFI) the first question was whether certain land in the New Territories was subject to a Chinese customary trust. It was held that it was not since no positive steps had been taken to establish such a trust and  there had been no transfer of land to such a trust. No managers had ever been appointed under section 15 of the New Territories Ordinance. Thus, the terms of a 1939 Division of Family document stating that the land was to be ancestral worship property were not effective. This conclusion was confirmed by the fact that the four sons of the person who had created the Division of Family had, on their father’s death, had themselves registered as tenants in common of the land under the now-repealed section 17 of the New Territories Ordinance ([59]).

Alternatively, even if the Division of Family had taken effect, the trust created was ended by the registration as tenants in common since this registration had priority over Chinese customary law ([67]). Further, this registration amounted to agreement by all the heads of the family for the purposes of Chinese customary law that the trust was to end ([74]). Alternatively, the registration as tenants in common was a valid basis for estoppel by convention to operate (the common assumption being that the land was not subject to an ancestral trust ([76] – [88]).

The plaintiffs claimed the quarter share due to them and even having failed to establish the existence of a Chinese customary trust, they would still be entitled to this as successors of one of the original tenants in common. The defendants had, however, collected the rent from the property without accounting to the plaintiffs for 31 years. This was held to be an ouster and, having continued for more than 20 years, it allowed the defendants to defeat the plaintiff’s title by adverse possession.

Michael Lower

Ousted tenants in common need to seek remedy promptly

June 21, 2013

In Ma Weineng v Ma Hook Kwan ([2013] HKEC 788, CFI) A and B were joint tenants and then (from 2007) tenants in common in equal shares of property. A and then A’s successor in title had been in exclusive possession since 1987 (both personally in possession and by retaining the entire rent derived from lettings of parts of the property). A’s successor was granted a declaration that B was now prevented by the Limitation Ordinance from bringing any action against A’s successor arising from his share in the property. A and A’s successor’s long ouster of B meant that B had lost his half share in the property. B’s title was extinguished.

Michael Lower