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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Conway v Conway & Anor (Rev1) [2024] EW Misc 19 (CC) (31 May 2024) URL: https://www.bailii.org/ew/cases/Misc/2024/19.html Cite as: [2024] EW Misc 19 (CC) |
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20, 22, 23, 24 and 31 May 2024 (Coventry) |
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B e f o r e :
sitting at the County Court at Nuneaton on 28, 29 February and 1 March 2024
and in the County Court at Coventry on 20, 22, 23, 24 and 31 May 2024
____________________
MR PETER CONWAY |
Claimant |
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- and - |
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(1) MR STEPHEN CONWAY (2) MRS AMBER MEEK |
Defendants |
____________________
Mr Simon Clegg (instructed by John Mohamed & Co Ltd) for the Defendants
____________________
Crown Copyright ©
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A THE CLAIM AND COUNTERCLAIM
B BACKGROUND CIRCUMSTANCES
(a) That payment of the £150,000 was below market value to reflect the works required to renovate the Barn;
(b) The payment of the £150,000 would be deferred whilst renovation works were ongoing and the Defendants would pay the Claimant the sum of £600 p.c.m., in the interim; and
(c) There would be a call option for the Claimant to purchase the Barn from the Defendants. This was necessary in case the Barn was required to be included for sale to a third party to develop Church Farm. In the event the buy-back was exercised, the Claimant would pay the market value of the Barn and an additional 10% in compensation.
C THE ISSUE ARISING IN THESE PROCEEDINGS
(a) Whether the Defendants are able to rely on the doctrine of "proprietary estoppel" where their claim is for the enforcement of a contract which does not comply with the requirements of s. 2 of the Law of Property (Miscellaneous Provisions) Act 1989 ("s. 2"). This is a matter of pure law. While the Claimant accepts that if the requirements of proprietary estoppel are demonstrated by the Defendants, there may be some consequences for him, he contends that the manner in which the Defendants' claim is pleaded makes it impossible for this Court to grant them either the relief sought in their counterclaim or any relief at all. If this issue is determined against the Defendants, it is contended by the Claimant that the whole of the counterclaim must fail.
(b) Whether the Defendants can demonstrate that the requirements for granting relief under the doctrine of "proprietary estoppel" are satisfied. This is primarily a factual issue.
(c) The terms of the oral agreement agreed between the parties which the Defendants seek to enforce against the Claimant. This is an entirely factual issue.
(d) If the requirements of proprietary estoppel are satisfied, the relief that should be granted to the Defendants, based on their pleaded case. Specifically, if the court is minded to grant any relief to the Defendants, the court will need to decide whether that relief should involve the making of an order in the terms sought by the Defendants or whether the equity giving rise to the claim made by them can be satisfied by the grant of the minimum relief necessary to do justice between the parties: see Guest v Guest [2022] UKSC 27.
D THE LAW
"(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
(2) The terms may be incorporated in a document either by being set out in it or by reference to some other document.
(3) The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.
,,,
(5) … nothing in this section affects the creation or operation of resulting, implied or constructive trusts."
"An open contract means a contract where only certain terms have been expressly agreed, leaving others to be implied by the general law. The simplest possible contract is where only the parties, property and price are specified, e.g. where A agrees to buy Blackacre from B for £100,000. This is the most "open' contract of all and though it is unbusinesslike it is perfectly effective in law. It is implied that the vendor must show a good title within a reasonable time and then complete the contract by the appropriate conveyance or transfer. It is for the purchaser at his or her own expense to prepare the draft conveyance or transfer for the vendor to execute. Contracts which are wholly open are in practice very rare nowadays and they are likely to disappear because of the stricter formal requirements that now apply to contracts for the sale of land. However, the principles which apply to open contracts form the bedrock upon which conveyancing law is built. … the open contract rules will regulate the affairs of the parties to the extent that their contract does not do so expressly."
"The House of Lords' decision in Thorner v Major [2009] UKHL 18 confirmed the existence, and helped to explain the operation, of a strand of proprietary estoppel that has come into prominence only in the past fifty years. It applies, it is submitted, where A makes a promise that B has or will acquire a right in relation to A's property and B, reasonably believing that A's promise was seriously intended as a promise on which B could rely, adopts a particular course of conduct in reliance on A's promise. If, as a result of that course of conduct, B would then suffer a detriment were A to be wholly free to renege on that promise, A comes under a liability to ensure that B suffers no such detriment."
"The practical importance of the principle derives from the fact that it can be used as a cause of action in a case where B has acted not in reliance on mistaken belief as to B's current rights (as in acquiescence cases) or as to a matter of fact or mixed fact or law (as in representation cases) but rather simply in reliance on a promise made by A as to A's future conduct. It has therefore provided a means of equitable protection for B, for example, where B has relied on a testamentary promise, on a promise as to B's rights in a family home, and on a promise as to rights that B will acquire in a planned commercial project. That protection is available even if there is no contract between the parties, as B's claim depends not on showing that A was placed under an immediately binding duty as a result of A's promise but rather, it is submitted, on showing that, having made the promise, it would now be unconscionable for A to leave B to suffer a detriment as a result of B's reasonable reliance on the promise."
"Proprietary estoppel … is a means by which property rights may be affected or created. The term describes the equitable jurisdiction by which a court may interfere in situations where the assertion of strict legal rights is found to be unconscionable. Although this jurisdiction is of ancient origin, it has been much developed by the courts in recent years and some of its more "archaic and arcane" features have been abandoned. The flexibility of the jurisdiction is such that the criteria for relief can be stated only in broad terms. Indeed, such is its nature that 'it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments' and that 'the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine'."
"Section 2 of the 1989 Act declares to be void any agreement for the acquisition of an interest in land that does not comply with the requisite formalities prescribed by the section. Subsection (5) expressly makes an exception for resulting, implied or constructive trusts. These may validly come into existence without compliance with the prescribed formalities. Proprietary estoppel does not have the benefit of this exception. The question arises, therefore, whether a complete agreement for the acquisition of an interest in land that does not comply with the section 2 prescribed formalities, but would be specifically enforceable if it did, can become enforceable via the route of proprietary estoppel. It is not necessary in the present case to answer this question, for the [oral "agreement in principle"] was not a complete agreement and, for that reason, would not have been specifically enforceable so long as it remained incomplete. My present view, however, is that proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void. The proposition that an owner of land can be estopped from asserting that an agreement is void for want of compliance with the requirements of section is, in my opinion, unacceptable. The assertion is no more than the statute provides. Equity can surely not contradict the statute… "
'45. A comprehensive, and in my view accurate, identification of the issues arising in relation to Section 2 appears in Snell's Equity at paragraph 12-046 under the heading "Formality requirements and other possible bars". That paragraph states, (citations omitted), '[Section 2] provides that contracts for the sale or other disposition of an interest in land must satisfy certain formal requirements, although s. 2(5) contains an express saving for constructive trusts. There has been some uncertainty as to the impact of this section on promise-based proprietary estoppel claims. Two principal views are possible. First, it could be said that [Section 2] imposes a prima facie bar on such claims, and therefore they can be made, if at all, only by means of a constructive trust. Secondly, it could be said that no proprietary estoppel claim is caught by [ Section 2 ], as the section regulates the requirements of a contract for the sale or other disposition of an interest in land, and a proprietary estoppel claim, even if promise-based, is distinct from a contractual claim. The better view, it is submitted, is the latter. In particular, it should be remembered that [Section 2], on its express wording, does not purport to deny all legal effects to a promise, or to render an agreement void: it clearly applies only to contractual claims. It might be argued that the policy behind the statute is more extensive, but it has been accepted that the statute does not deny all legal effects to informal agreements and also that it has no impact on an acquiescence-based claim: "it would be a strange policy which denied similar relief to a claimant who had acted on a clear promise or representation that he should have an interest in the property". Moreover, there are no examples in the case law of an otherwise valid proprietary estoppel claim failing simply because of the effect of [Section 2]. The only practical impact of the first view is that judges have felt obliged to characterise a successful proprietary estoppel claim as giving rise to a constructive trust even if, on the facts of the case, there is no suggestion that A in fact holds any right on trust for B. The law would therefore be more transparent if it were clearly established that [Section 2], as was intended by the Law Commission when proposing the reforms that led to the 1989 Act , has no effect on any proprietary estoppel, whether based on A's acquiescence, representation, or promise." The reference to the intention of the Law Commission when proposing the reforms that led to Section 2 was explained by Beldam LJ in Yaxley v Gotts [2000] Ch 162 at pages 188-190 and reiterated by the Court of Appeal in Dowding v Matchmove Ltd [2017] 1 WLR 749 at [26].
46. … I consider that Megarry & Wade actually takes a similar view of the impact of Section 2 in paragraph 15-028 under the heading "Other bars to relief – enforcement contrary to statute". That paragraph states, (citations omitted) : 'The court will not give effect to C's equity if and to the extent that to do so would contravene some statute. This latter principle is subject to two qualifications. First, the court will give such relief as does not conflict with the statute even if it cannot give the more extensive rights which C might otherwise have sought. As has been explained, this requires the court to examine the mischief which the statute sought to address. Secondly, it is not every statutory provision that is fatal to the enforcement of an equity. If the statute merely regulates the dealings between the parties to a transaction, rather than laying down some more general rule of a public character, the court may give effect to an equity in [the claimant's] favour and [the landowner] may be unable to rely on the statute. [The landowner] may therefore be estopped from relying on the provisions of … a statute requiring compliance with certain formalities for contracts or trusts relating to land.'
47. Further, in the footnote reference to 'certain formalities for contracts' at the end of that paragraph, it is suggested that the view that an estoppel requires a constructive trust to 'shield it from the effect of Section 2' (by use of section 2(5)), 'fails to recognise that estoppels are not caught by Section 2 precisely because they remedy unconscionability. They do not purport to enforce the contract and do not need the shield of Section 2(5) and the constructive trust. Of course, it might be difficult to establish unconscionability arising from a failed contract where the parties are experienced persons of business..'
48. Although having a slightly different emphasis, I consider that those extracts from Snell's Equity and Megarry & Wade both seek to make the same basic point. Section 2 is aimed at problems in the formation of contracts for sale of land, whereas the purpose of an estoppel is to remedy unconscionability in the assertion of strict legal rights. Accordingly, there is considerable doubt that Section 2 is intended to affect the operation of proprietary estoppel at all, but even if it did, Section 2 could only operate as a bar to the grant of equitable relief if and to the extent that such relief had the effect of enforcing, or otherwise giving effect to, the terms of a contract for the sale or other disposition of an interest in land that the statute renders invalid and unenforceable.
49. So, for example, in Cobbe the claimant was in effect attempting to use proprietary estoppel to obtain an order enforcing the terms of an unwritten contract under which he would acquire an interest in the land owned by the defendant. That was why, in paragraph [29] of his speech, Lord Scott focussed directly on the question of whether a claimant could use an estoppel as a means of enforcing such a contract notwithstanding the clear statutory policy invalidating it, 'My present view, however, is that proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void. The proposition that an owner of land can be estopped from asserting that an agreement is void for want of compliance with the requirements of section is, in my opinion, unacceptable. The assertion is no more than the statute provides. Equity can surely not contradict the statute …' (my emphasis)
50. Where, however, the alleged proprietary estoppel is not raised in order to enforce the terms of a contract for sale or other disposition of an interest in land, there is no equivalent reason why Section 2 should operate as a bar to the grant of equitable relief. That was the explanation given by Lord Neuberger in paragraph [99] of his speech in Thorner, where there was no question of any contract being agreed between the uncle and the claimant.'
"But what, in my judgment, is important, is that Mr. and Mrs. Gossop were not asserting a proprietary estoppel in an attempt to enforce the agreement that had been reached in March 2012. As set out above, they raised the proprietary estoppel argument in order to defeat the claim for possession against them by Mr. and Mrs. Howe … Nor was it Mr. and Mrs. Gossop's pleaded case that the unconscionability of Mr. and Mrs. Howe seeking possession of the Green Land should be remedied by an order for sale of the Green Land to themselves in accordance with the terms of the oral agreement of March 2012. Instead, like the respondents in Sahota v Prior , their pleaded case was that the equity which they contended had arisen operated to prevent Mr. and Mrs. Howe seeking to assert their legal right to possession and should be given effect by a declaration that they be entitled to a licence to occupy the Green Land for their lives or until they sold Lea Farm."
"The general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it. This was not a provision aimed at prohibiting or outlawing agreements of a specific kind, though it had the effect of making agreements which did not comply with the required formalities void. This by itself is insufficient to raise such a significant public interest that an estoppel would be excluded. The closing words of section 2(5) - "nothing in this section affects the creation or operation of resulting, implied or constructive trusts" - are not to be read as if they merely qualified the terms of section 2(1). The effect of section 2(1) is that no contract for the sale or other disposition of land can come into existence if the parties fail to put it into writing; but the provision is not to prevent the creation or operation of equitable interests under resulting implied or constructive trusts, if the circumstances would give rise to them.
There are circumstances in which it is not possible to infer any agreement, arrangement or understanding that the property is to be shared beneficially but in which nevertheless equity has been prepared to hold that the conduct of an owner in allowing a claimant to expend money or act otherwise to his detriment will be precluded from denying that the claimant has a proprietary interest in the property. In such a case it could not be said that to give effect to a proprietary estoppel was contrary to the policy of section 2(1) of the Act of 1989. Yet it would be a strange policy which denied similar relief to a claimant who had acted on a clear promise or representation that he should have an interest in the property. Moreover claims based on proprietary estoppel are more likely to arise where the claimant has acted after an informal promise has been made to him.
In my view the provision that nothing in section 2 of the Act of 1989 is to affect the creation or operation of resulting, implied or constructive trusts effectively excludes from the operation of the section cases in which an interest in land might equally well be claimed by relying on constructive trust or proprietary estoppel."
That, to my mind, is the case here. There was on the judge's findings, as I interpret them, a clear promise made by Brownie Gotts to the plaintiff that he would have a beneficial interest in the ground floor of the premises. That promise was known to Alan Gotts when he acquired the property and he permitted the plaintiff to carry out the whole of the work needed to the property and to convert the ground floor in the belief that he had such an interest. It would be unconscionable to allow either Alan or Brownie Gotts to resile from the representations made by Brownie Gotts and adopted by Alan Gotts. For my part I would hold that the plaintiff established facts on which a court of equity would find that Alan Gotts held the property subject to a constructive trust in favour of the plaintiff for an interest in the ground floor and that that interest should be satisfied by the grant of a 99-year lease. I consider the judge was entitled to reach the same conclusion by finding a proprietary estoppel in favour of the plaintiff."
"Lord Scott made it clear that the remarks [in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55, at [29]. Reproduced above) were obiter. They are accordingly not binding on me…'
One of the members of the court in Yaxley v Gotts was Beldam LJ. He had been Chairman of the Law Commission at the time of its working paper and report on Formalities for Contracts for Sales of Land on which the 1989 Act was based. Like Hengham CJCP who in oral argument on a point of statutory interpretation in a case in 1307 (Aumeye v Anon YB 33-35 Edw 1 82) said to counsel "do not gloss the statute, for we know it better than you: we made it", he was in a good position to say what the Commission had in mind. He said: 'In the present case the policy behind the Commission's proposals was as clearly stated as its intention that the proposals should not affect the power of the court to give effect in equity to the principles of proprietary estoppel and constructive trusts. Even if the use to be made of the Commission's report is to be confined to identifying the defect in the law which the proposals were intended to correct, in a case such as the present it is unrealistic to divorce the defect in the law from the policy adopted to correct it. The Commission's report makes it clear that in proposing legislation to exclude the uncertainty and complexities introduced into unregistered conveyancing by the doctrine of part performance, it did not intend to affect the availability of the equitable remedies to which it referred.' I therefore accept [the] submission that, notwithstanding Lord Scott's dicta in Cobbe, proprietary estoppel in a case involving a sale of land has survived the enactment of s 2 of the 1989 Act.
In Cobbe, Lord Walker did not think it necessary or appropriate to consider the issue of s 2. However, he drew a distinction between commercial and domestic cases, saying 'It is unprofitable to trawl through the authorities on domestic arrangements in order to compare the forms of words used by judges to describe the Claimant's expectations in cases where this issue (hope or something more?) was not squarely raised. But the fact that the issue is seldom raised is not, I think, coincidental. In the commercial context, the Claimant is typically a business person with access to legal advice and what he or she is expecting to get is a contract. In the domestic or family context the typical Claimant is not a businessperson and is not receiving legal advice. What he or she wants and expects to get is an interest in immovable property, often for long term occupation as a home. The focus is not on intangible legal rights but on the tangible property which he or she expects to get. The typical domestic Claimant does not stop to reflect (until disappointed expectations lead to litigation) whether some further legal transaction (such as a grant by deed or the making of a will or codicil) is necessary to complete the promised title.' Lord Neuberger drew a similar distinction between commercial and domestic cases in Thorner v Major. I accept Mr Moraes' submission that it is the nature of the parties' dealings, not the nature of the property, which determines whether a case is to be regarded as commercial or domestic. Judge Lochrane classified the present case as commercial. In my view he was right to do so.' The question is then whether, on the assumption that what is pleaded in the Amended Defence may be true, assurances of the kind given by Mr Kinnear to Mrs Whittaker can create a proprietary estoppel or a constructive trust in her favour notwithstanding that the parties went on to sign a contract of sale which made no mention of them.
One lesson to be drawn from Herbert v Doyle and Thorner v Major is the fact-sensitivity of claims based on proprietary estoppel or constructive trust. As Lord Neuberger said in Thorner at para 80, "the meaning to be ascribed to words passing between parties will depend, often very much, on their factual context". He went on to emphasise that the trial judge in that case had the advantage of hearing the parties' oral evidence and was consequently far better able than any appellate tribunal (even with the benefit of transcripts of the evidence) to assess not only how the statements would have been intended by Peter and understood by David, but also whether any understanding and any reliance by David were reasonable'."
"In addition, as I mentioned at the hearing, I am aware that Lord Neuberger has stated a view extra-judicially which is at odds with that of Lord Scott. In a lecture to the London Common Law and Commercial Bar Association on 9 June 2009 Lord Neuberger said 'I suggest that section 2 has nothing to do with the matter. In cases such as those in Crabb v Arun and Thorner v Major , the estoppel rests on the finding that it would be inequitable for the defendant to insist on his strict legal rights … where there is the superadded fact that the claimant, with the conscious encouragement of the defendant, has acted in the belief that there is a valid contract. I suggest that section 2 offers no bar to a claim based in equity'."
"I have the obiter dictum of one Lord of Appeal in a House of Lords decision [Lord Scott in Cobbe], and the considered but extra-judicial view of another Lord of Appeal (now Supreme Court Justice) [Lord Neuberger]. Even more unfortunately, they also point in diametrically opposed directions. There is also the decision of the Court of Appeal in Yaxley v Gotts, the scope and ambit of which is not entirely clear, but which certainly supports the notion that at least in some cases s 2 does not bar a claim based on proprietary estoppel. For what it may be worth, my own preference would be for the view espoused by Lord Neuberger [and] Bean J …"
"Despite some dicta expressing concern about the relationship of proprietary estoppel to the formality rules found in the Law of Property (Miscellaneous) Provisions Act 1989, it is now clear that this does not affect the operation of the doctrine."
E BURDEN AND STANDARD OF PROOF
F THE EVIDENCE IN THE CLAIM
"… Mr Conway is surprisingly relaxed by the current position (I would be a bit cross) and he is happy to transfer the property (and I saw plans) but on the basis that Mr Stephen Conway pays him the £150,000 together with £600 for each month from as yet undecided date to the date of completion to compensate him for the additional cost he is meeting in the terms of his mortgage. We discussed briefly and prolifilary [sic] the need to ensure that the house retains the necessary rights over the barn; that the barn sale does not include the accessway but has a right of way over the accessway and that the barn is to be able to access the septic tank in the field at the back subject to the payment of a reasonable service charge." (Emphasis supplied).
"Your Instructions
Your instructions resulting from our consultation are to advise and act for you in connection with the sale of the freehold of the above Property for £150,000 to Amber Meek.
What We Will Do
We will draft the contract for the sale of the Property and the Land Registry Transfer of part, taking your instructions on any property enquiries. We will deal with the negotiation of any amendments and title queries etc. We will complete the sale and account to you for the net proceeds of sale. We will also deal with the Deed of Covenant and consent required from Radiosite Limited in order to comply with the Restriction registered against the Property at the Land Registry."
"I have now been able to produce the first draft Transfer document containing the rights and obligations of the parties etc. I attach this and would be pleased if you would have a look through and let me know if you need anything changed. I would not, expect you to deal with the legal nuances but the main obligations and rights should be clear enough. I also attach the draft plan which I have prepared based on the one you sent. It is a draft at this stage and so we can amend it if it not quite right. In any event I will need a hard copy of the plan probably (if this is how you received it) because the scale can change when it is printed out and that will make it unacceptable to the Land Registry."
"TC with Nathan when Peter is going to speak to Buyers of the Barn to see how they wish to proceed. He may end up reimbursing their costs of the build so far."
"Further to your email of 26 October, we have received further instructions from our client as follows.
Simultaneously with the sale and purchase of the Property, your Client is to grant ours an Option (possibly up to 15 years) to buy back the Property at market value to be the average of three independent valuations. The Option to contain a timetable to completion in the usual way."
G DISCUSSION AND ANALYSIS
"the elements of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments and that the courts' task is to "look at the matter in the round" Nonetheless, in every case, the court's analysis will benefit if the particular questions that may arise in a proprietary estoppel claim are approached in a systematic way. This can be done by considering in turn each of 'the three main elements' of proprietary estoppel: '… a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance.'
"In my List of Documents at item 11 is the Planning Permission Plan. At Item 19 is the Plan of the right of way agreed for access to the property and parking. At Item 20 is a Plan of the right of way Mr Conway proposed in a Contract. This is a different Plan and was not the one which we agreed to as it did not provide an access to the front door or access to side parking. We became aware of the amended right of way when we received the draft Contract and Option Agreement which were sent to my Solicitors on 29 March 2022. This Plan does not reflect the agreed access which is what I have shown in shaded red to the front and side of the Barn. The access Mr Conway proposed does not give any access except to enter the garage. This means we would not have access to our front door or side parking. It is inconceivable that we ever agree to this… During the initial conversations with Mr Conway, Steven I discussed who may potentially live in his farmhouse following the sale and if this would affect us in any way. Mr Conway stressed that when the rear boundary wall was built we would have complete privacy… Regarding our right of way over his land to access our property and the side parking, he stated this would be written into the Contract and any agreement with the new owners of his house would stipulate this also. He didn't see a problem with our privacy and potential owners anyway as he emphasised the point that his house is separated by electric gates from the land we would have right of way over. This reassured us. There was no reason to doubt him."
"It was my idea, which I suggested to Mr Conway in March
2020. that we would pay him £500 a month interest for 10 months back dated to January until October to secure and pin him down to a time frame to complete the sale. I felt that £5000 would be a manageable additional price to pay in an attempt to protect our investment so far and a large enough amount that he would accept and not insist it to be cash. We also paid the entire cost of £1,500.00 for a new septic tank. This would be servicing the various dwellings and businesses on the estate, so not only or the barn but also for Mr Conway's property."
H CONCLUSION AND REMEDIES
I ACKNOWLEDGMENTS
Note 1 It is accepted by the Claimant that Mr Walker acted as the Claimant’s agent with full authority to give instructions to the Claimant’s solicitors about the sale. [Back] Note 2 These were also the conditions that were incorporated in the draft contract sent by Kundert to the Defendants’ solicitors. However, the draft contract was not proceeded with. The most recent version of the Standard Conditions of Sale is the Fifth Edition, published in 2018. [Back] Note 3 In these and other passages of the works which I have cited, I have ignored the cases and other authorities to which references have been made. [Back] Note 4 [2021] EWHC (Ch), at [66]. [Back] Note 5 I accept that this figure is disputed by the Claimant. For the purpose of deciding whether this limb of the three-fold test is satisfied, that is largely irrelevant. [Back] Note 6 See, for example, General Condition 5 of the Standard Conditions of Sale which provides,inter alia: “If the buyer is not already lawfully in the property, and the seller agrees to let him into occupation, the buyer occupies on the following terms … (d) to pay the seller a fee calculated at the contract rate on a sum equal to the purchase price (less any deposit paid) for the period of the licence.”
[Back]