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Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Adverse possession and leases

This is one of four Lexis®PSL Practice Notes on adverse possession. The others are:•Establishing adverse possession of land•Claiming title by adverse possession under the Limitation Act 1980 or the Land Registration Act 1925•Claiming title by adverse possession under the Land Registration Act 2002Adverse possession of the demised premises by a squatterThe tenant’s positionA squatter will extinguish a tenant’s title to the demised premises if the squatter can show adverse possession for an uninterrupted period of at least twelve years:•at any time (where the lease is unregistered), or•before 13 October 2003 (where the lease is registered)As a result, the squatter will be entitled to apply to be registered as the proprietor. For further information, with particular reference to the position where the lease is unregistered, see HM Land Registry Practice Guide 5, para 7.1.In the case of an unregistered lease, the relevant provisions are the Limitation Act 1980 (LA 1980) ss 15, 17 and Sch 1. In the case of a registered lease where the squatter can show adverse possession for...

Buyer’s contract negotiation guide—title and encumbrances

Buyer’s contract negotiation guide—title and encumbrances Are title clauses just standard ‘boilerplate’? Many commercial property contracts will deal with title matters in a similar way and often there is little scope or need to amend the clauses if the title is straightforward and nothing bespoke is required. However, it is important to be clear on the effect of the clauses, the legal background, how they apply in particular scenarios and their interaction with the buyer’s due diligence. Key legal principles for sellers and buyers of property We consider here the fundamental legal principles of the buyer-seller relationship. Implied obligation selling free from encumbrances There is an implied obligation that the seller is selling a freehold estate free from encumbrances. This can only be rebutted in three ways: • by express contractual provision • if the buyer knows (actual knowledge) that there is an irremovable encumbrance, or • if there is a patent (ie visible) defect in title (although this is overridden if the seller expressly agrees...

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Share purchase agreement—pro-buyer—individual sellers—conditional—long form

Share purchase agreement—pro-buyer—individual sellers—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 The several persons whose names and addresses are set out in Schedule 1 (together the Sellers), and 2 [Insert name of purchasing corporate entity] incorporated in [England and Wales OR [Insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Buyer), [(each of the Sellers and the Buyer being a Party and together the Sellers and the Buyer are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in[ England and Wales OR [insert country of incorporation]]. Details of the Company are set out in Schedule 2, Part A. (B) The Sellers are the legal and beneficial owners of the Sale Shares (as defined below), being in aggregate the entire allotted and issued share capital of the Company. (C) The Sellers have agreed to sell and the...

Share purchase agreement—pro-buyer—corporate seller—conditional—long form

Share purchase agreement—pro-buyer—corporate seller—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of selling corporate entity] incorporated in [England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Seller); 2 [Insert name of purchasing corporate entity] incorporated in England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Buyer), and 3 [Insert name of guarantor entity] incorporated in England and Wales OR [insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Guarantor) [(each of the Seller, the Buyer and the Guarantor being a Party and together the Seller, the Buyer and the Guarantor are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in [England and...

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A private road is used to access a block of flats. The leases of the flats have a right of way over the road. The developer company who built the flats retained the private road but the company was dissolved in the 1970s. The management company of the flats owns the freehold to the block of flats. It has actively maintained and exercised control over the road for at least 30 years. Can the management company apply for title by way of adverse possession of the private road even though the flats have an express right of way over the road? If adverse possession is not possible, how can the management company acquire the freehold to the road?

A private road is used to access a block of flats. The leases of the flats have a right of way over the road. The developer company who built the flats retained the private road but the company was dissolved in the 1970s. The management company of the flats owns the freehold to the block of flats. It has actively maintained and exercised control over the road for at least 30 years. Can the management company apply for title by way of adverse possession of the private road even though the flats have an express right of way over the road? If adverse possession is not possible, how can the management company acquire the freehold to the road? This Q&A raises a number of issues: the acquisition of freehold title by adverse possession where the owner is the Crown, the nature and extent of rights of way and the extent to which they can prevent adverse possession arising. In the present case, a developer built a...

What’s the limitation period for a trespass to land, and does limitation start from the date a continuing trespass began or does it renew each day?

What’s the limitation period for a trespass to land, and does limitation start from the date a continuing trespass began or does it renew each day? A claim of trespass to land is barred by lapse of the statutory period of limitation, which, except in certain specified cases, is six years from the accrual of the cause of action under section 2 of the Limitation Act 1980 (LA 1980) which provides that: ‘an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued’. See Commentary: Expiration of limitation period as defence to trespass to land: Halsbury's Laws of England [185]. It should also be noted that in relation to: • unregistered land, a person may, however, bring an action to recover unregistered land wrongfully possessed within 12 years of the date upon which the cause of action accrued • registered land, a person in continuous adverse possession of registered land for ten years or more may...

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Property Disputes weekly highlights—20 March 2025

This week's edition of Property Disputes weekly highlights includes: the grant of permission to apply for judicial review in relation to the Leasehold and Freehold Reform Act 2024, an appeal concerning the validity of the service of a claim form served in reliance on section 48 of the Landlord and Tenant Act 1987 after the end of the tenancy, a High Court appeal decision that failed window seals and glazing units do constitute disrepair under student accommodation leases, and an Insolvency and Companies Court appeal decision that interests in co-owned freehold property vested in the trustee of the bankrupts’ estate. It also includes various updates from the HM Courts and Tribunals Service—including updated guidance relating to the Damages Claims Portal for claims proceeding under CPR PD 51ZB, new precedent costs budget forms and publication of its contact details for using the online claims services, as well as details of the commencement of the Court and Tribunal Fees (Miscellaneous Amendments) Order 2025.

Property weekly highlights—20 March 2025

This week's edition of Property weekly highlights includes: permission to apply for judicial review of enfranchisement valuation provisions in the Leasehold and Freehold Reform Act 2024, the Law Society’s announcement of a new two-form approach following an extensive consultation about the TA6 form, the latest HM Land Registry updates, the launch of the BPF ‘Heat Network Network’ and cases on statutory lease variations, responsibility for window defects, stamp duty land tax for purchases of additional dwellings and capital allowances in respect of certain environmental studies undertaken in connection with the construction of offshore windfarms.