Donora Company Limited v Tsuen Kam Centre (IO) ([2024] HKCFA 3 ) considered whether the external walls of a building were common parts of the building or were intended for the exclusive use of the developer. If they were common parts, the costs of repair would be a shared cost of the building owners collectively. If the walls were reserved for ‘exclusive use’ then the costs of repair would have to be met by the party entitled to that exclusive use. The Court of Final Appeal (Mr Justice Lam PJ giving the main judgment) agreed with the developer that the external walls were common parts of the b ..read more

Registrability of agreement for the purchase of shares of a company whose only main asset is land Hundred Gain International Holding Limited v Cheng Mei Holdings Limited ([2023] HKCFI 2705) concerned an agreement for the sale and purchase of the shares of Smart Edge Limited, a company whose main asset was a commercial building. Hundred Gain International Holding Limited (‘Hundred Gain’), the purchaser, paid deposits under the agreement but was unable to complete the purchase. The vendors exercised their right to terminate the agreement. Smart Edge sold the building to a third party (Goldstone ..read more

Introduction Is it possible for legal tenants in common to create an equitable joint tenancy? If a couple own a flat as legal tenants in common, can they declare that they hold the title to the flat on trust for themselves as joint tenants? Each tenant in common has a share which is legally distinct from the share of the other tenant in common. How can tenant in common A declare a trust over the share of tenant in common B? If tenants in common want to create a joint tenancy, do they need to assign the property to themselves as joint tenants? These were the questions facing the Court of Appeal ..read more

Introduction How should the court proceed where the facts of a case are such that the presumed resulting trust (‘PRT’) and the common intention constructive trust (‘CICT’) might each be applicable? This is an important question and one that arises frequently, especially in disputes concerning the ownership of the family home. While the two trusts overlap, they can generate radically different outcomes. This is because the CICT has regard to a range of evidence that is broader than the factors relevant to a PRT analysis. The CICT can, for example, consider mortgage or other payments that are ma ..read more

The problem of oral land contracts and proprietary estoppel England’s Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA’) requires land contracts to be in writing and signed by both parties. Failure to comply results in the invalidity of the contract (LPMPA, s. 2(1)). The LPMPA abolishes the doctrine of part performance since the doctrine presupposes the validity, but unenforceability, of oral land contracts. The LPMPA, s. 2(8) repeals section 40 of the Law of Property Act 1925 (‘LPA’) which rendered oral land contracts unenforceable but did not deny their existence as contracts. Als ..read more

A presumed resulting trust can arise where title to land is in A’s name but B contributed to the purchase price. The same facts would readily give rise to an inference that B has a beneficial interest under a common intention constructive trust. This overlap between the presumed resulting trust and the common intention constructive trust matters because of the potential for different outcomes when it comes to valuing beneficial interests. The beneficiary’s interest under a presumed resulting trust is strictly proportionate to their contribution to the purchase price. This may not be true in th ..read more

Introduction Where a single landlord owns an entire building or estate with multiple tenants, are they responsible to their tenants for a nuisance created by one of their number? Can the other tenants, who suffer harm because of the actions of their anti-social neighbour, sue their common landlord? Are they restricted to bringing proceedings in nuisance against the tenant who caused the harm? This is the question addressed in the House of Lords judgment in Southwark LBC v Tanner ([2001] AC 1). The facts in Southwark Southwark LBC converted a house into flats. The work complied with the Buildin ..read more

Introduction Monat v All person(s) in occupation of part of the remaining portion of Lot No 591 in Mui Wo DD 4 No 16 Ma Po Tsuen, Mui Wo ([2023] HKCA 479) is an important case in several respects. First, it considers whether a squatter’s illegality has any possible impact on an adverse possession claim. Having decided that illegality can have an impact on the claim, the question is whether Hong Kong should follow England in moving from the Tinsley ‘reliance’ test to the Patel ‘range of factors’ approach. More fundamentally, the judgment addresses the status of judgments of the UK Supreme ..read more

Introduction An earlier blog post outlined the facts and the judgment of the majority of the UK Supreme Court in Guest v Guest ([2022] UKSC 27).   One of the distinctive features of proprietary estoppel, in comparison with the common intention constructive trust for example, is the judicial discretion as to the relief to be awarded. This discretion gives judges some flexibility and an ability to seek solutions that are fair to all concerned in the circumstances of a particular case. It is desirable, however, that there should be a conceptual framework to guide the exercise of judicial dis ..read more

Introduction The judgment of the UK Supreme Court in Guest v Guest ([2022] UKSC 27) provides an authoritative review of the fundamental aims of proprietary estoppel and the principles governing equitable relief. The majority judgment was given by Lord Briggs (with whom Lady Arden and Lady Rose agreed). This blog post provides a description of the facts and of the outcome. The next blog post looks at the account of the fundamental principles concerning equitable relief and the structured approach proposed by the majority of the Supreme Court. Facts A father (David) owned Trump Farm (‘the farm ..read more