Buying a Property Expense

Financial calculations must be made ensuring client has sufficient funds to purchase the property and pay related costs.

Land Registry Fees are payable for registering the land or a dealing at Land Registry after completion. Fee’s are payable on a scale published by the Land Registry and the client can find out the exact amount (£40-300 ish).

Stamp Duty tax is payable at the rate of 1 % on the whole consideration paid. Where it exceeds £125,000 (Residential property) or £150,000 (Commercial property) or property is within a disadvantaged area (check hmrc website for list of disadvantaged areas) and not exceeding £250, 0000.
Prices between £250,000 and £500,000 will pay at 3%. Anything that exceeds £500,000 will need to pay 4%.
Bare in mind total tax payable does not include price of chattels. But in some cases m, if the sale includes chattels its possible to alleviate tax payable by apportioning some of the price to the chattels included in the sale i.e. furniture, carpets etc. However this amount must be a fair reflection of the value of the chattels otherwise both the solicitor and the client will be liable to criminal sanctions.

Deposit: Buyers are usually required to pay a deposit of 10% on the purchase price (although it maybe possible to negotiate a smaller sum). Solicitors need to discuss with their client how they intend to fund this.

Mortgage: Most clients will choose to fund their purchase via a mortgage. Plus an arrangement fee (£200-300).

Mortgage Premium Insurance- Pays for the mortgage on the off chance the client falls ill or looses work. Although it has its limits as well as requiring the client to have worked a certain number of years.

Survey: Commission an independent survey of the property ensuring the property is free of unknown defects. There are different types, the more detailed the survey the higher the cost i.e. a valuation will only provide basic information and usually carried out by the lender.

Searches: Anything between £200-300

Professional Fees (solicitors) usually in the range of £350-£1000 + VAT. Depends on the property. Always added onto the disbursements.

Land -> Mortgagee's Remedies4

A legal mortgagee has a common law right to posession of the mortgaged property (Four-Mains v Dudley). However in practice a mortgage deed will often provide the mortgagee's right of possession shall only arise on the mortgagors default.

Where a mortgagee brings a claim for possession, this right will be restricted by the Admin of Justice Act 1970, s36. Which is operable only where court proceedings for possesion take place (Ropa v Barclay). So the m'gee right to possession could be exercised by peaceable entry withut court assistance (but regulated under s6(1)) Criminal Law Act 1977 preventing use of threatening behaviour or force).

In practice a m'gee will usually seek possession in order to sell the mortgaged property. The statutory power of sale in LPA 101 arises where the mortgage money has become due (legal date of redemption has passed). Exercisable under one of the three sections of LPA s103.
In exercising a power of sale, a m'gee must take reasonable are to obtain a proper market price for hte property.

In Cuckmere Brick v Mutual Finance the m'gee had failed to obtain the true market value of the property and were liable to the mortgagor in damages. Such a claim must be brought within six years (Raja v Lloyds TSB). M'gee's have a duty in exercising this power of sale in equity. Thus a m'gee needs not carry out any improvements to the property or obtain planning permission (Silven v RBS) but merely duties of good faith and diligence.

However there is no duty on the m'gee to delay power of sale until market conditions are more faourable. Therefore a m'gor may not argue theres been abreach merely because the market value of the property has risen since it was sold (Palk v MSF).

LPA s105 states all proceds of sale must be paid in order of priority of mortgages and any o/s amounts maybe claimed personally.

Land -> Mortgagee's Remedies3

The whole purpose of amortgage is to provide security which the mortgagee can release if the mortgagor fails to repay the loan.

Foreclosure
When a borrower can not repay a loan and the lender seeks to sell the property. The legal process by which the mortgagor's equitable/statutory rights to redeem property is terminated.

• Forclosure can not besought before contractual obligations to repay has been broken (Williams v Morgan).
• A court order is required for foreclosure, its effect is to vest the mortgagor's estate in the mortgagee in ful settlement of debt (LPA 1925, s88(2) & 89(2))
• If the property is worth more than the debt, the m'gee is not liable to pay the balance in value to the m'gor.
• On hearing an application for forclosure the court will give the m'gor a period to redeem the mortgage. However since m'gor usually in financial difficulty therefore unable to repay the loan.
• M'gor has right to ask for an order for sale instead of foreclosure (LPA s91(2)). This is advantagous because after sale the m'gee can only keep the sum for debt while the remainder goes to the m'gor or others entitled.
• Disadvantage to the m'gor, as even after an order for foreclosure has been given, the case can be reopened and allow m'gor to redeem property (Campbell v Holyland); provided critera are: Speed of mortgagors application, reason for failure to redeem and nature of property. UNLESS property already sold by m'gee.

Possession
Although the m'gee hass the right to possession, the m'gee will not nomrally exercise hte right where the borrower has not defaulted (Exp Bignold).
Requires a court order (Barclay Bank v Bird). Although theoretically they do NOT need one, acording to the article by Wade (1995).

Equity & Trusts -> The 3 Certainties

The Settlor holds absolute title in the property before the creation of a trust.

The Trustee once a trust has been created the legal title in the trust property must be vested in the trustee and held by the trustee on trust for the beneficiaries.

The Beneficiary the person(s) for whom the property title is to eventually end up in.

Bare Trust: where the trustee holds property for a single absolute beneficiary and therefore owns the entire equitable interest in the trust fund, the trustee has no discretion or any obligation other than stewardship.

Fixed Trust; when a trust is held by a trustee for a fixed list of beneficiaries.

Discretionary Trust and power of appointment: discretion of distributing property in a manner the trustee deems suitable.

Notice: A purchaser is taken to have notice of an equitable interest unless they had either actual notice of the equitable interest of the beneficiaries or constructive or imputed notice.

Capacity: the ability to own property (under 18s cant legally own property[land]). Therefore a trust is usually created to transfer property once he/she turns 18.

A valid trust can only exist if the settlor intends to create a trust and defines the relevant property an beneficiaries clearly. The criteria to decide this was established in Knight v Knight per Lord Langdale;

• Certainty of Intention, which is an intention on the part of the settlor to create a trust. This is usually done by examining the words used by the settlor. Did he intend to impose a trusteeship on the recipient of the property? 'The words must be imperative' Wright v Atkyn. However since equity looks at intent rather than form theres no technical way to create a trust. Re Hamilton is the authority for looking at the entire document to determine the existance of a trust. Mere expression of hope, wish and trust does not amount to a trust.
• Certainty of subject matter, which the settlor expresses the a clear description of the trust property and what type of interest each beneficiary has and the respective interests they will share. Re London Wine Co buyers of wine stored in warehouse-not segregated-unable to ID which bottles belonged to whom... therefore no trust. However in Hunter v Moss oral declaration of 5% of shares - held valid. If shares in the same company and of the same class, no need to segregate. The rule in Hancock v Watson states where a property has been left to a beneficiary as an absolute gift subject to a trust which has failed, then the bene takes the property absolutely.
• Certainty of Object, sufficient identification of the beneficiaries.

Re Aster Settlement Trust: a trust was created with the objective of advancing 'the preservation' of the independant and the integrety of newspapers in particular the Observer. It was held that there was no beneficiary of such a purpose and uncertain therefore the trust was held void.

Deal with each certainty in a logical order even where there are no problems.

• Intention
• Subject Matter
• Property
• Beneficial Interest
• Objects
• Effect of any uncertainty.

Contract -> Frustration

After making the contract an unforeseen event occurs beyond the control of either party making performance of the contract (1) illegal (2) impossible or (3) radically different from what was originally contemplated by both parties.

1. Impossibility: events where performance of the contract has become impossible. Physically destruction of subject matter as in Taylor v Caldwell destruction of the concert hall made performance impossible.

Death of one of the parties to a contract (Stubbs v Holywell Railway) will frustrate a contract. Unless performance of the contract need not be performed by any particular person thereby not preventing actual performance.

Temporary Impossiblity may frustrate a contract where eventual performance would be radically different from that originally envisaged. Pioneer Shipping v BTP Tioxide where a charter body was contracted to make 6 voyages within 9 months but this was halved due to a strike at the port therefore although performance was possible it just wasn’t what they originally contracted for.

Sometimes performance may not be impossible as such as the thing still exists but for reasons beyond either parties control it may not be used as they intended. Bank Line v Arthur Capel a ship requisitioned thereby unable to charter on the day.

Also the case that an illness will frustrate a contract. Robinson v Davison wife contracted to play the piano fell ill on day of performance.

Or the unavailability of agreed terms may also frustrate a contract Nickoll & Knight v Ashton, Etridge – unavailability of the specified ship named in the contract frustrates a contract.

2. Illegality although performance is physically possible the contract is frustrate as since the time of the contract there has been a change in the law making further performance illegal. The Fibrosa case in which war broke out as Germany invaded Poland (WWII), it became illegal to trade with the enemy if war is declared before time of performance. Unless it has already illegal at the time of the contract in which case the doctrine of frustration will not apply.

3. Frustration of common purpose of both parties: performance is still possible but would be radically different performance from originally envisaged by both parties. An intervening event has destroyed all purpose of the contract thereby frustrating the contract. But only if the contract “wholly devoid of purpose”. Krell v Henry subject of the contract was a view of the coronation of King Edward VII. Since the king fell ill the purpose was destroyed.

Herne Bay Steam Boat v Hutton: the hire of a boat to observe the kings review of the navy and a cruise of the fleet. The review was cancelled due to the king’s illness… but it was still possible to cruise around the fleet.

Self induced frustration; a party cant plead frustration if he’s responsible for the frustrating event (Maritime v Ocean Trawlers). Although there’s doubt whether a negligent act may amount to self induced frustration. Commercially the answer is yes (The Super Servant II) but in a personal capacity the situation is still unresolved (Joseph Constantine).

Event must not be foreseeable by either party (Davis Contractors v Fareham UDC) otherwise they could have prevented it by taking out insurance or something.

Effect of Frustration

Parties are discharged from performance of ay future obligations. Any monies paid could be recovered if there’s a total failure of consideration (Fibrosa).

Under the Law Reform (Frustrated Contract) Act 1943 any money paid or payable before the frustrating even ceased to be payable but is recoverable by payee subject to 2 things:

1. Any advance payment used in performance of contract maybe kept in full or part (Gamerco v Fair Warning).
2. Where a party has obtained a valuable benefit before the frustrating event, the other party may recover from him a sum not exceeding the value of the benefit (BP Exploration (Libya) v Hunt).

GENERAL ANSWER STRUCTURE

• Has the event sufficiently radically changed to frustrate the contract?
• What is the common objective of the contract and how has it been affected.
• Was the event reasonably foreseeable.
• Has either side received a benefit?
• Can the other party claim for expenditure?

Contract -> Answer Undue Influence

The CoA defined undue influence in Allcard v Skinner as “some unfair and improper conduct, some coercion from outside, some over reaching, some form of cheating generally, though not always some personal advantage gained”.

Allcard v Skinner suggests in every professional relationship involves parties dealing with each other on some unequal footing. There must be evidence of victimisation or improper conduct leading to some personal advantage being gained.

Relationship between bank & debtor

In Lloyds Bank v Bundy the HoL stated ‘there must be evidence that the bank overstepped the boundaries of a normal confidential relationship before undue influence can be presumed’ also that the transaction was ‘wrongful’ (RBS v Etridge). So has the bank overstepped its boundary to a normal bank and customer relationship.

Wife Undue Influence

Current law suggests banks must take reasonable steps when dealing with wives acting as surety for a husbands business (Etridge No.2). Failure to do so mean the banks fainted by undue influence of the debtor, leaving it with little chance of enforcing the security against the wife.

We must ask whether the bank was ‘put on enquiry’ in considering the nature of the transaction. Drawing an analogy with Goode Durrant v Biddulph was the wife risk/benefit ratio grossly disproportionate to that of the debtor?

However if on the face of it the transaction is not suspicious the bank need only act as a reasonable prudent one, and need not show suspicion (Woolwich v Gomm).

If wife successfully argues the bank was put on enquiry then the bank will need to show it followed procedures laid down in Etridge (No.2); the bank should have persuaded the wife to seek an independent advisor to explain the nature of the transaction & possible liability. As well as discussing with her directly if she wished to proceed (Aboody). In not doing so they falls short of the standards expected in Northern Rock BS v Archer.

Guidelines under Etridge (No.2) clearly state it is the independent legal advisor who will confirm to the bank that the proper advice has been given to the surety.

If the bank fails to comply with Etridge No.2 the wife will still need to establish that her husband/debtor acted wrongfully towards her.

If there’s a manifest disadvantage the bank has a duty to ensure wife receive independent advice (Natwest v Morgan).

Remedies

If successful the primary remedy is rescission subject to the lapse of time, affirmation and restitutio in integrum. Damages NOT available for undue influence, unless bank has broken a duty of care towards wife damages available in negligence. Advice would be to act sooner rather than later and notify the bank of their intention to avoid contract.

Contract -> Undue Influence

A person who has been induced to enter into a transaction by the undue influence of another is entitled to set that transaction aside as against the wrongdoer.

UI is either ‘actual’ or ‘presumed’ - as classified by the HoL in Barclays Bank v O'Brien put forward by SA v Aboody.

Actual (Class 1) Where proof of the unfair pressure was required. The person alleging UI must also suffer a manifest disadvantage (Barclays Bank v Coleman). Royal Bank of Scotland v Etridge (No 2): The Etridge principle applied to banks seeking to enforce surety: The bank should take steps to check directly with the wife the name of the solicitor who acts for her. The communication must be direct with the wife. The bank should give the solicitor the necessary financial information. If the bank suspects the wife is being misled by her husband, it should inform the solicitor. It should always get written confirmation from the solicitor.

Presumed (Class 2) Where the relationship meant the party accused of unfair pressure had to disprove it. Class 2A: Nature of relationship means UI is automatically presumed, unless it can be shown that the person alleging it had legal advice (Allcard v Sknnner). Parent & child (Wright v Vanderplank); Solicitor & client (Wright v Carter); Doctor & patient (Mitchell v Homfray); Trustee & beneficiary (Ellis v Barker); Religious adviser & disciple (Roche v Sherrington). Class 2B: if the claimant can show the relationship was one of trust and confidence then it is for the other party to disprove the UI (O’Brien). Bank and customer (Lloyds Bank v Bundy).

With both Class 2A&B the transaction must be to the ‘disadvantage of the party claiming UI’ (National Westminster Bank v Morgan).

If wives can show a relationship of trust and confidence in their husbands (qualify under Class 2B) presumed UI. Therefore a creditor (bank) can be put on notice if:

1. the contract is not prima facia to the wife’s advantage.
2. there is a risk the husband has committed a wrong in getting the wife to stand as surety.

Therefore the creditor can’t enforce the surety unless he takes ‘reasonable steps to satisfy himself that the surety entered into the obligation freely and in full knowledge of the true facts’ which involves (O’Brien).

• Personal interview without debtor present.
• Explaining full extent of liability and risks involved in standing surety.
• Encourage them to seem independent legal advice.

Although the creditor needs not enquire about the nature of the legal advice (Massey v Midland Bank) and may presume the solicitor will act honestly/competently (Banco v Mann & Others). The bank need only act as a reasonable, prudent one would, need not show suspicion (Wollwich v Gomm).

Tort -> Occupiers Liability

The Occupiers Liability Act 1957 applies not only to land and buildings but also to fixed and moveable structures, including any vessel, vehicle or aircraft.

Occupier: any person who has a sufficient degree of control over premises (Wheat v Lacon - landlord and tenant of pub both owed duty of care to guest injured on stairs. However, no breach on the facts).

Visitors – under s.1(2) the occupier owes a duty of care to all lawful visitors. Express or implied permission defined as a lawful visitor i.e. invitees, licensees, people entering under a contract, people with a legal right to enter. Trespassers do not fall within this scope.

Note: a person may be a visitor in one part of premises and not another (Campbell v Shelbourne Hotel).

s.2(2) states that an occupier has a duty of care to ensure that in all circumstance visitors will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there for. (Simms v Leigh RFC - P injured by hitting concrete wall surrounding rugby field. D not liable as injury foreseeable but so improbable that it was not necessary to guard against it).

Children - An occupier must be prepared for children to be less careful than adults (s.2(3)(a)). Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe.

• Occupiers must not lead children into temptation (the allurement principle (Glasgow Corp v Taylor - 7 year old died after eating poisonous berries in park. D knew of the berries but took no precautions against children).
• However occupiers are reasonably entitled to assume small children are accompanied by an adult (Phipps v Rochester Corp).

Experts – s.2(3)(b) occupiers can expect experts who come on his property to guard against inherent risks. Occupiers may assume professional visitors will guard against risks that are within their professional knowledge (Roles v Nathan). However occupier still owes a duty to professional visitors as seen in Salmon v Seafarer.

An employer may still be liable for failing to provide safe system of work (General Cleaning v Christmas).

Independent Contractors – s.2 (4) states there’s no liability for ‘faulty execution of any work or construction, maintenance or repair by an independent contractor…’ providing

• It was reasonable to entrust the work (Haseldine v Daw).
• A competent contractor was hired.
• If necessary the occupier checked work was carried out properly (Woodward v Mayor of Hastings).

Three key points:

• The standard of care is the same as for negligence as there’s no need to guard against the unforeseeable (Bolton v Stone).
• Duty only exists while the visitor carries out authorised activities.
• The visitor must be kept safe, not premises.

Avoiding liability

Warning Signs: s.2 (4) warning relieves liability if ‘in all circumstances it was enough to enable the visitor to be reasonably safe’. However what is sufficient warning is a question of fact in each case, as in others but in certain circumstances a warning maybe insufficient and a barrier maybe needed (Rae v Mars (UK)).

• If the danger is obvious to all, the occupier can assume the visitor will take care (Staples v West Dorset D.C).

Exclusions: s.2 (1) exclusions are allowed ‘by agreement or otherwise’, so can exclude by a term of the contract or by a communicating notice (Ashdown v Samuel Williams).

• Excluding liability to person entering by a legal right is not possible nor is excluding liability when bound by a contract to admit strangers to a contract.

Defences

Contributory Negligence: It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they incurred as a result of defendants negligence.

Volenti: latin for “to a willing person, no injury is done”, this doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting injuries s2 (5).

• If risk is fully understood (Simms v Leigh RFC).
• Mere knowledge of a risk is insufficient to raise defence (White v Blackmore).
• Where claimant has no choice then there is no consent (Burnett v British Waterways).
• Express warnings of claimant entering at own risks are probably caught by Unfair Contract Terms Act.

Occupiers Liability to Trespassers

Occupiers Liability Act 1984 applies mainly to trespassers.

Traditionally no duties were owed to trespassers except when intentional or recklessly inflicted harm.

Section 1(3) provides that a duty will be owed by the occupier if:

(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

The duty is to take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned (s1(4)).

Revill v Newbury - D liable for shooting trespassing burglar through door. A duty of care is owed to trespassers engaged in criminal activities. D used greater violence than was justified in lawful self-defence.

The duty can be discharged by taking steps to warn of the danger concerned, or to discourage persons from incurring the risk (s1(5)) (Westwood v Post Office).

Public -> JR Answer Structure No 2

Ultra Vires (illegal)

Public bodies may only validly exercise their powers within the limits conferred onto them by statute or common law. Decisions outside their scope may be held to be ultra vires (AG v Fulham Corp).

Error in law: an authority which is entrusted with a discretion must direct itself properly on the law, otherwise its decisions could be held to be invalid (R v Home Sec exp Venables – increasing the ‘tariff period’ Home Sec misdirected himself in law as his decision was based on irrelevant material (a public poll) and he disregarded relevant material.

A minister may commit an error in law if he acts without cause (based on evidence) or acts in a way that he reasonably would not do (Education Sec v Tameside Council).

Exercise of a power for an improper purpose with i.e. intending malice or personal dishonesty, can be held to be invalid (MC of Sydney v Cambell) – the council had a power to buy additional land to extend streets NOT to make profit.

Powers are not lawfully exercised if the decision maker takes into account irrelevant materialR v Home Sec exp Venables). and disregards relevant accounts (

Unauthorised delegation; a body to which the exercise of discretion has been entrusted by statute may not delegate the exercise of that discretion to another person or body (Barnard).

Discretion must not be fettered: public bodies often exercise discretion in deciding to grant a benefit or impose a penalty. In law the bodies must consider each case on its merits including exceptional circumstances and taking into account relevant standards, policy and precedent. But must be careful not to adopt a policy that would unreasonably refuse an application (British Oxygen Co v Board of Trade).

Irrationality/Unreasonableness.

A decision maybe set aside for unreasonableness. Using Lord Greene MR ‘Wednesbury test’ for unreasonableness, which states: “The authority has come to a conclusion so unreasonable that no reasonable authority could have come to”.

Or the decision is lawful but imposes conditions that are unreasonable (R v Hillington). With the introduction of the European Convention of Human Rights, restrictions on a decision must be necessary and proportionate to be justifiable. The greater the interference with HR the greater the justification required to demonstrate the decision was reasonable.

Tort -> The Rule in Ryland v Fletcher

Blackburn J: the person who, for purposes of his own, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape.

Ingredients of rule A bringing on to land and accumulating: No liability for things naturally present (Giles v Walker) Or for natural accumulations (Ellison v Ministery of Defence) Escape need not be by thing brought onto land (Miles v Forest Rock Granite) A thing likely to do mischief if it escapes: Escape need no be probable (Musgrove v Pandelis) Nor the thing dangerious in itself (Shiffman v Order of St John) Escape causes foreseeable harm (Hale v Jennings) A non-natural use of the land: Domestic use is usually natural (Sokachi v Sas) Unusual volume or quantity suggests non-natural use - The Charing Cross case. Thing escapes and causes damage: Either from land in defendants control to that not in his/her control (Read v Lyons) or from circumstances within defendants control to ones not in his/her control (British Celanese v A H Hunt) Damage is foreseeable (Cambridge Water v Eastern Counties Leather).

Parties to an action Potential defendants: if Read v Lyons is followed will be owners or occupiers of land thing escaped from. if British Celanese v Hunt is taken will be people in control of circumstances escape happed from. Potential Claimants If Read v Lyons is followed then owners/occupiers of land thing escaped to. if British Celanese then claimant does not need a proprietary interest in land.

Problems with Rule Number of defences Requirements of foreseeability. Read v Lyons Non-Natural Use No Real Strict liability for dangers

Defences Consent (Peters v Prince of Wales Theatre) Common benefit (Dunne v North West Gas Board). Act of stranger (Perry V Dendricks Transport). Act of God (Nicholls v Marsland) Statutory Authority (Green v Chelsea Waterworks) Contributory negligence (Eastern Telegraph v Cape Town Tramways).

Recoverable Loss and Remoteness of Damage

• According to MacMillian, recovery is only possible for damage to land occupied by the claimant or his chattels on that land.
• Lawton suggests claimants for PI are also possible (Hale v Jennings (1938)).
• All damage must be proven as tort not actionable per se.
• No liability for mere interference with enjoyment of land (Eastern & SA Telegraph Co v Cape Town Tramways Co (1902)).
• Defendant must know or ought to reasonably foresee damage of the relevant kind might be a consequence of the escape (Cambridge Water).
  

Defences

• Common benefit: no liability if source of danger is kept for both defendant and claimants benefit (Dunne v North West Gas Board (1964)).
• Act of a stranger: if a stranger over whom defendant exercises no control causes the escape then no liability (Perry v Kendricks Transport Ltd (1956)).
• Statutory authority: if the escape is a direct result of carrying out the duty (Green v Chelsea Waterworks Co (1894)).
• Contributory negligence: damages reduced if claimant is partly at fault for the escape (Eastern Telegraph v Cape Town Tramways (1902)).

Read v Lyons [1947]

• HL held the rule of Ryland v Fletcher did not apply as an escape under this rule means ‘an escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control.

Tort -> Nuisance

Definition: as ‘continuous, unlawful and indirect interference with a person’s enjoyment of land or some right over, or in connection with it’. State of Land; An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land (Leakey v National Trust).

Ingredients of Unreasonable use of land: Locality; It was stated in Sturges v Bridgman ‘what may be a nuisance in a residential area need not be in an industrial area’. Nuisance must be continuous (Bolton v Stone) over a period of time with the claimant's use or enjoyment of land. The utility of the defendant's conduct; It will be unlikely for an activity to amount to a nuisance if it is useful for the community as a whole (Harrison v Southwark Water). Sensitivity of the claimant: The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. (Robinson v Kilvert). Malicious behaviour on part of the defendant maybe regarded as evidence of unreasonableness (Christie v Davey).

Interference with use/enjoyment of land The claimant must usually prove damage, physical damage to the land itself or property; or injury to health, which prevents a person enjoying the use of their land (Halsey v Esso Petroleum - disturbing neighbours' sleep by noise and vibrations and damage to clothes from acid smuts). HoL in Hunter v Canary Wharf stated interference with TV reception does not amount to nuisance as it is not interference with use or enjoyment of land. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune.

Defences Prescription: If the nuisance has been continued for 20 years without interruption the defendant will not liable for a nuisance (Sturges v Bridgeman). Statutory authority: If it can be shown that the activities complained about were authorised (expressly or impliedly) by a statute (Allen v Gulf Oil) Coming to the nuisance: It is no defence to prove that the claimant came to the nuisance: (Miller v Jackson: the cricket ball case)

Public -> Freedom of Protest

Freedom of protest is a right laid down by European Convention on Human Rights article 10 (freedom of expression) article 11 (freedom of assembly) and implemented by common law (Beatty v Gillbank). Which the courts must balance against the offences under the Public Order Act 1986 and article 11 (2) which restricts the freedom of assembly to prevent disorder and crime.

• A public assembly is defined under s16 of the Public Order Act 1986 as ‘an assembly of 20 or more persons in a public place which is wholly or partly open to the air’.
• A procession is defined in Flockhart v Robinson as ‘a body of persons moving along a route’.

Police Powers

S11 of the Public Order Act 1986 requires 6 days of advance notice to the police unless it’s not reasonably practical.

The police have a discretion on how they use their public order control powers and are not obliged to arrest or disperse protestors, nor can they arrest for lawful protest or anything that’s not a crime (R v Chief Constable of Devon).

S14 allows a senior officer at the scene to impose conditions upon a public assembly if he reasonably believes it would result in public disorder. Officers an give directions on place, number of people and duration of assembly as well as statutory powers to disperse assemblies. Refusal of police direction is a criminal offence.

If the protestors become intimidating, harassing or cause alarm or distress then a senior officer can authorise dispersal under s.30 of Anti-Social Behaviour Act 2003 as seen in R v Chief Constable of West Midlands.

A common law power exists to prevent a breach of the peace “an act or threat of violence” (R v Howell). Which can be used to disperse a crown as seen in Duncan v Jones and for the offence of obstruction of a police officer in the execution of his duties.

Obstruction of a Highway

It is an offence under s137 of the Highway Act 1980 to wilfully obstruct free passage along the highway without lawful authority or excuse. Arrowsmith v Jenkins held a gathering on the pavement is an obstruction of the highway. Even if theres no intention to obstruct it is still an offence of wilful obstruction. As ‘a highway is for passage and re-passage and your purposes incidental to that movement’.

DPP v Jones (Margaret) HoL held that a small protest in a public place on a roadside verge was not an obstruction of the highway; Small + Peaceful protest = not an obstruction of the highway.

Use of Threats and Violence Under POA

s.1 (Riot)	Use or threat of unlawful violence	12 or more ppl with a common purpose
s.2 (Violent disorder)	Use or threat of unlawful violence.	3 ppl
s.3 (Affray)	Use or threat of unlawful violence towards another.	1 person
s.4 (fear or provocation of violence) DPP v Fidler and Moran	Use of threatening, abusive, nsulting words or behaviour or display of such towards another.	1 person
s.5 (Harassment alarm or distress)	Use of threatening abusive, insulting words or behaviour or display of such.	1 person

Use of threats, abusive or insulting behaviour likely to cause fear of immediate persona violence (R v Horsefery Rd) would satisfy s4 +s5 of POA to experience harassment alarm or distress.

A s.1 riot is a serious offence under the act ‘12 or more people present use of threatening violence for a common purpose as would cause a reasonable person to fear for his personal safety’. The violence may include violence towards person or property (s.7), however it must be proved they had a common purpose… usually towards violence (R v Jefferson). This can sometimes be difficult to prove therefore a s.2 offence may be charged (violent disorder) as it merely requires 3 participants and no need to prove “common purpose”.

Criminal -> Deception

The offence of obtaining property by deception is created by s.15(1) of the Theft Act 1968:

“A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding 10 years.”

Actus reus: Deception Obtains Property Belonging to another

Mens rea: Dishonestly Intent of permanently depriving Deliberate or recklessly making the deception

Actus Reus:

Deception is defined in s.15(4), where it may take the form of words or conduct. S.15(4) requires the deception to be deliberate or reckless:

• Deliberate where he knows his representations are untrue.
• Reckless where he knows his representations may or may not be true.

DPP v Ray - Restaurant customer left without paying. ‘Implied representation’ he would pay. An omission can amount to a deception.

R v Laverty - The deception must cause the obtaining of property.

R v Collis-Smith - The deception must precede the obtaining of property.

Barnard – Deception by conduct; Oxford students charge to college was in gown but want actually a student.

MPC v Charles - Overdrawn cheque @ Casino: if the victim says he did not care, therefore not deception a victim would have done it anyway.

R v Lambie – Woman on a shopping spree using a maxed out card.

R v Goodwin – Getting freebies from a vending machine he cannot therefore be charged under s15 as the deception must operate on a human mind, but can be charged with theft.

S.15(2) define Obtains as when the D obtains ownership, possession and control of the property either for himself or another.

S.34(1) defines Property. “Money and all property, real or personal, including things in action and other intangible property” may be obtained by deception.

‘Belonging to another’ is defined under s.5(1).

The property that belongs to the V transfers physically to another person.

Preddy – transferring money from 1 account to another there’s no physical transfer of anything. Therefore not deception… possibly theft tho.

Mens Rea:

Dishonesty: There’s no set definition of dishonesty. The common law test defined under s2:

a) Belief in legal right to deprive

b) Belief in owner's consent (Re Holden)

c) Belief that owner cannot be traced.

Or s.2 (2) can be dishonest even if willing to pay i.e. buying something that’s not for sale.

If D does not fall into one of the above then apply the Ghosh test:

In R v Ghosh, a person is dishonest if either:

1. Was the D behaviour dishonest according to standards for reasonable person? (Objective test... what is the standard? Too uncertain)
2. Did the D realise he was falling below the standard?

No need to put the second part of the test unless D suggests he was being honest.

Intention to Permanently Deprive: defined under s.6 where it’s given the common sense meaning.

Deliberate or recklessly; the deception must be deliberate or Cunningham Reckless; in other words the D must know that the statement is false or know that it may be false.

Obtaining money transfer by deception: s.15A created by the Theft (Amendment) Act 1996 as a result from Preddy.

Obtaining a pecuniary advantage by deception: s.16 refers to obtaining a financial advantage.Money is NOT a pecuniary advantage… its property.

Watkins – told lies to get an over draft.

Charles – Dodgy cheques @ casino.

Clarke – D lied to get a job said “im not dishonest as I knew I could do the job” even if I lacked the qualifications.

DPP V Turner – D wrote a cheque which bounced & he knew it would. Acquitted as he did not intend to permanently deprive.

Obtaining services by deception: defined in s.1 TA 1978. if you deceive a person to performing some service for FREE you can not be charged with this section.

Evasion of liability by deception: defined under s.2 TA 1978. An existing liability to make a payment & you get out by some sort of deception. Or wriggling out of a future liability. However the V must be aware there is a liability to remit.

Silbartie – train passenger flashed an invalid ticket at conductor.

Making off without payment as defined in s.3 TA 1978

Brookes v Brookes – making off doesn’t have to be deceptive.

Troughton v Metropolitan Police - taxi driver drove passenger to wrong place customer didn’t want to pay.

Equity & Trusts -> Charitable Trusts

Charitable trusts are created to carry out a charitable purpose; however a trust is only charitable if it benefits the public as a whole or a sufficient section of it.

To be a valid charitable trust it must satisfy requirements:

• Gift must be for purpose which falls ‘within the spirit and intendment’ of preamble to Statute of Elizabeth.
• Trust must promote public benefit accepted by courts (as what is considered charitable is a question of law not settlors intentions)
• Purposes must be wholly and exclusively charitable.

There’s no set definition of poverty, but generally a person who’s ‘unable to maintain a very modest standard of living for himself and any dependant’ (Mary Trustees v Anderson).

Categories identified in Lord MacNaghten’s judgement in Commissioners for the Purpose of Income Tax v Pemsell:

1. Trusts for the relief of poverty.
2. Trusts for the advancement of education.
3. Trusts for the advancement of religion.
4. Trusts for other purposes beneficial to the community.

Must not include purposes that are NOT charitable i.e. political (Re Bushnell).

The promotion of sport is not a charitable purpose (Re Nottage), unless it can be regarded as a means of furthering a purpose which is charitable. As seen in Re Mariette provision of squash courts as an integral part of boys education and thus was placed under the second head of Lord MacNaghtens criteria in Pemsel; ‘advancement of education’. It’s a matter of construction of the purpose of the trust as a means of furthering a charitable purpose. But only if the court is willing to infer that the testator intends that purpose.

Provisions for prize maybe charitable f the game is itself said to be educational/charitable in some way (Re Dupress) although this can be difficult to prove and will tend to be borderline charitable. However under the Recreational Charities Act 1958 it is charitable to provide facilities for recreation or other leisure time occupation in the interests of social welfare provided the facilities improve the conditions of life for the people for whom they are intended and there’s a need of such facilities.

Vicars/Churchwardens and such promote a charitable purpose regarding the advancement of religion (Re Simpson), as long as the person work is limited to the charitable scope (Farley).

Environment and moral (preservation of … ) may be held to be charitable under the fourth head (Re Wedgwood). As long as it is of public benefit it is charitable. However if its purpose is considered political or aims to change the law, it will be denied charitable status as the court will be unable to judge if this is in the publics benefit (McGovern v AG) unless the political element is merely ancillary to the charitable purpose (IRC v Temperance).

Advantages of Charitable Trusts

• Exemption from the beneficiary principle.
• Exemptions from the rules of inalienability.
• Exemptions from certainty of objects rule.
• Tax benefits e.g. income tax, inheritance tax.

Differences between Charitable and Private Trusts

1. Primary difference is charitable trusts aim to benefit society at large whereas private trusts is designed to benefit group of people or purposes which the law does not recognise as charitable.
2. Private trusts are enforced by beneficiaries (Morice v Bishop of Durham) whereas charitable trusts are enforced by the Attorney General (AG). Thus also whereas ‘certainty of object’ is an essential requirement for private trusts (Re Astor Settlement Trusts) it is not necessary for charitable trusts. Provided its wholly charitable and satisfies the public benefit element (Re Smith; a gift on to my country England). Unless terms are so vague that it could be applied to non-charitable purposes the trust can not be deemed charitable (Re Cole).
3. If a private trust fails it falls on resulting trust to the settlor or the settlor’s estate. If a charitable trust fails the property can sometimes be saved for charity by applying the cy-pres scheme, although a general charitable intentions (Re Wilson) as specified in the Charities Act 1993 s.13.
4. Private trusts are subject to rules against perpetuities whereas charitable trusts are subject only to the rules of remoteness of vesting (Christ Hospital v Grainger).
5. Charitable trusts also enjoy certain tax benefit and relief i.e. income tax, capital gains tax and inheritance tax.