Section 2 Law of Property (Miscellaneous Provisions) Act 1989 says that ‘a contract for the sale or other disposition of an interest in land can only be made in writing’. But, to what extent can s2 be avoided by a finding that there is a constructive trust? 


It should usually be possible for a developer to get vacant possession of agricultural land. In summary, there are two agricultural law regimes that can apply:

agricultural tenancies (granted pre-1995): these will be subject to Agricultural Holdings Act 1986 and almost always run on a yearly basis. L may serve notice to terminate but such notice must always be of at least 12 months, and must terminate on the annual term date. One of the grounds for possession is to enable non-agricultural use. But, this pre-supposes that L already has either (i) a valid planning permission for non-agricultural use as well as an intention to develop the land in accordance with that planning permission, or (ii) an intention to develop the land for non-agricultural use for which planning permission is not required (eg private forestry);

The death of one of the contracting parties between contract and completion will not affect the validity of the contract; the benefit and burden of the contract will pass to the deceased’s PRs who are bound to complete. A failure to complete on time will lead to a claim for damages. 


Conditional contracts will usually contain a longstop date in respect of a condition (eg the grant of planning permission). If the event does not take place by that date then the contract will usually say that either party can end the contract. But, when agreeing such a longstop date, always consider whether or not time should be of the essence. 


More cases are coming to trial as a result of the property collapse, with developers suing bulk buyers who then, in turn, sue their sub-buyers. One leading case involved a contract for the sale of 100 flats to a bulk buyer, who then entered into contracts to sell to different sub-buyers. The bulk buyer never had any intention of retaining the flats, but was simply looking to make a profit (about £20,000 per flat). Because of the property collapse, the sub-buyers could not complete, and that meant that the bulk buyer was also unable to complete its contract with the developer.

If a contract is ambiguous, should the courts interpret it in a literal manner or should they look at the commercial reality? There has long been a tension between these two approaches, and two recent cases show that even the CA is not entirely clear as to the preferred approach: 


To decide whether a party has repudiated a contract through their behaviour, you apply an objective test: 


‘So far as concerns repudiatory conduct, the legal test is simply whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon or altogether to refuse to perform the contract.’ 


The general rule is that a property is sold in its condition as at the time of exchange. 


This was confirmed in a recent case where fixtures had been stolen between the time of the buyer’s inspection and the exchange of contracts.

A unilateral notice may be entered into without the consent of the registered proprietor. Note that the applicant does not have to prove to the LR that its claim is valid, or produce any supporting evidence. Clearly, there is potential for misuse by those who want to exert pressure on a landowner during negotiations.

The landowner can apply to cancel the notice, but if an objection is made to the application to cancel, the registrar cannot determine this until the objection is being disposed of. If that cannot be done by agreement then the matter must be referred to the adjudicator.

The commission agreement with an agent (eg corporate finance adviser) will often say that the agent is to be paid a fee if the client goes ahead at a later date with a transaction, even if the agent is not involved in that particular transaction (apparently, these are called ‘tail-gunner’ clauses).

The lead authority for deciding whether a seller (or a T vacating leasehold premises) has given ‘vacant possession’ is set out in Cumberland Holdings [1946]. The case involved a warehouse sold with vacant possession, but the basement was left unusable by the seller, who had left rubbish (including many sacks of cement that had hardened), making it difficult to remove. The court held that vacant possession had not been given and set out two alternative tests:

Franchise terms and conditions are normally construed in such a way that the franchisor will have little potential liability to the franchisee. Thus, a recent case is interesting because it was held that a duty of care arose, and the loss incurred by the franchisee was sufficiently proximate for the franchisor to be liable.

The death of either the Buyer or the Seller in the period between contract and completion will not affect the validity of the contract; the benefit and burden of the contract will pass to the deceased’s PRs (who are bound to complete).

Suppose a buyer fails to complete, and as a result the seller is unable to complete their own related purchase, and so loses their deposit on that purchase. Can the seller (a) forfeit the deposit from their buyer, and (b) also claim compensation for the deposit that they have lost on their related purchase?