De Le Cuona v Big Apple Marketing Ltd, Chancery Division, 12 April 2017 

Easement to park; illusory; true construction of a deed

John de Waal QC and Lina Mattsson appeared for the appellants. The case concerned the construction of a deed. The deed related to two parking spaces in a car park within the appellants' property. It was common ground that if the deed was a lease, it was void for lack of registration. The respondent argued the deed granted easements to park. The deed was called a lease on its front page, and the parties were referred to as "landlord and tenant". It said that the lease was to run for 114 years.

Clause 2 was headed demise and provided for yearly rent of £1. A service charge reserved as rent was also payable. Clause 3.10 permitted the landlord to have access on previous notice to carry out repairs. Clause 4.1 contained a Landlord’s covenant of peaceful enjoyment. Clause 5 allowed termination for breach. These were the sort of terms expected in a lease. The Court however held that the deed granted an easement. The deed referred to "parking rights" rather than parking spaces; that suggested something less than exclusive possession. It also provided for the exclusive right and liberty to be "appurtenant", which suggested an easement. The court accepted that it was unusual to grant an easement for a term of years, but it was possible under the Law of Property Act 1925 s.1. The Court agreed that some of the clauses in the deed might be “redundant” if the deed provided for an easement, but they did not give rise to an inconsistency. On balance, the preferable view was that the deed on its true construction provided for the grant of an easement. The Court further found that the appellants walked across the spaces when no car was parked in them, or allowed for a car to be backed into them when coming out of another space. In principle, it was possible to change the surfacing or to erect an advertising board on the fence. The grant of the parking right did therefore not render the appellants' ownership of the land illusory and was capable of constituting an easement. The Court applied Moncrieff v Jamieson [2007] UKHL 42 (a Scottish case) and Batchelor v Marlow [2001] EWCA Civ 1051.

Port of London Authority v Mendoza [2017] UKUT 146 (TCC), 12 April 2017

Adverse possession - intention - river beds - public rights of navigation

The Port of London Authority appealed against a First-tier Tribunal's decision that it was not entitled to register its title to part of the Thames river bed as a result of the respondent’s adverse possession. The respondent lived on a houseboat which had continuously occupied the same mooring for the 13 years before the authority's application. Initially, the respondent had simply moored the boat and agreed the boundaries with the owners of neighbouring boats, but in later years he marked out the extent of his property with ropes and rocks. The tribunal found that he had, through adverse possession, acquired title to the rectangle of river bed beneath his boat. The UT allowed the appeal and held that (1) the mere mooring of a vessel was insufficient to establish the requisite intention for the purposes of a claim for adverse possession. That was not, however, to say that the mooring of a boat could never, in principle amount to adverse possession; the question would always turn on the facts. While it had become clear over time that the respondent intended to stay, in the early years the boat's presence was ambiguous. (2) On the public rights of navigation, there was no absolute rule that adverse possession was impossible where there were public rights of navigation. An analogy could be drawn with the adverse possession of land through which a public footpath ran. In such cases, adverse possession did not extinguish the footpath. Similarly, public navigation rights could not be extinguished by adverse possession.

Chung v Towey, [2017] UKUT 157 (LC) Upper Tribunal (Lands Chamber), 18 April 2017

Enfranchisement; recoverability of landlord’s fees for a valuation; fees incurred pre- and costs-applications

The freeholders appealed against the First-tier Tribunal's refusal to allow recovery from the purchasing tenant of the cost of their obtaining a valuation under s.9(4)(e) of the Leasehold Reform Act 1967. The FtT had held that as the valuation had been undertaken after the tenant had submitted an application to the First-tier Tribunal for a determination of the appropriate premium, it held that the cost had not been incurred "in pursuance of the [tenant's] notice" as required by s.9(4). The UT disagreed. It held that there was a distinction between the cost of a valuation and the cost of a valuer appearing at or conducting the proceedings. Further, subsections (a) to (e) of s.9(4) all concerned costs which were recoverable only if incurred in pursuance of the notice of claim, and some of those costs would necessarily be incurred after the application to the tribunal. The landlord was therefore entitled to the costs of the valuation.

Octagon Overseas Ltd v Coates [2017] EWHC 877 (Ch)

Appointments of a manager- Causes of action - Injunctions- Jurisdiction

Octagon Overseas Ltd is the freehold owner of a development known as Canary Riverside. The FtT had appointed Mr Coates as the manager pursuant to s.24 Landlord and Tenant Act 1987. As part of its order it required the previous manager, Canary Riverside Management Ltd, to, amongst other things, provide copy documents (accounts, invoices, etc.) to Mr Coates. Mr Coates contended that this order had not been complied with and brought a claim in the County Court for an injunction against Canary Riverside Management Ltd seeking to enforce the management order. The County Court made an injunction, with a penal notice attached. Canary Riverside Management Ltd successfully appealed the order. The court held that the county court lacked jurisdiction to make an injunction as there was no underlying cause of action. The judge commented that the appropriate application for Mr Coates to make would have been to apply to the FtT for further directions and orders including, if appropriate, for a penal notice to be attached to the management order or to the County Court for permission, under CPR 70 and section 176C, Commonhold and Leasehold Reform Act 2002 Act.