In the week of April Fool’s Day, James Wilson surveys legal history for some of the strangest and most surprising property cases, which likely had exasperated judges checking the date on their calendars
When I was studying land law, some years ago, the lecturer began one morning by reading out the North Korean legal code’s treatment of the subject. The entire entry translated along the lines “no one may buy or sell land in any way, shape or form”. It would, the lecturer observed, make for a distinctly easier course.
No doubt it would, but on the other hand, without the complex Western legal system we would have been deprived of all of the entertaining cases in property law. These range from cases that made for crucial legal rulings to those which did nothing more than resolve bickering between petty-minded neighbours, but entertained onlookers all the same.
Quirky but great cases
One case for which many millions of Londoners and visitors to the city have had particular cause to be grateful is the 19th century authority of Tulk v Moxhay (1848) 2 Ph 774. The case concerned the sale of an open space in central London in 1808. The sale contract contained a covenant that the land would remain open public space (“uncovered with buildings”). Some years later, a different party bought the land and refused to abide by the covenant because it was not in his contract, even though he had had notice of it. In holding that the purchaser was bound by the covenant nonetheless, Lord Cottenham made an important ruling in the law of equity. But of greater interest to the general public was the particular piece of land involved: a plot in WC2 known as Leicester Square. An important non-legal precedent for public spaces in cities was thereby established.
An interesting set of circumstances arose in the much more recent case of Thorner v Majors and another [2009] UKHL 18; [2009] PLSCS 104. The background facts read like something out of Flora Thompson’s Lark Rise to Candleford in their depiction of a small English farming community. The owner of the farm in question, Peter Thorner, was described as a “man of few words”; a relatively private man who “never took to paperwork” and thus never wrote down most of his affairs. As the courts later found, he promised the claimant, his first cousin David Thorner, that he would inherit the farm if he helped work on it – work in this context meaning day after day of challenging physical toil with no holidays or other time off.
The problem, as described by a police officer who gave evidence, was that the farmers of the area were not given to direct speaking. “What are you doing tomorrow?” in the local parlance had to be translated as “Would you come and help me tomorrow?” and was less an inquiry than an instruction. So David dedicated many years of his life to helping Peter, all on the basis of an indirect statement which in another context would count as no more than a chance remark (and certainly not an explicit written will). But the judge in the High Court, and later those of the House of Lords, found that the promise had been made and relied upon, and thus David received his inheritance and reward for his decades of unstinting labour.
Daft disputes
Great legal cases aside, we can find much amusement in disputes where the only importance seems to have been the self-importance of the litigants involved. Or, to put it another way, cases involving more money than sense.
In recent times judges have become more outspoken in expressing their opinion of that sort of litigation. Faidi and another v Elliot Corporation [2012] EWCA Civ 287; [2012] PLSCS 66 is a good example. It concerned a prestigious block of flats in central London. The claimants complained about the wooden floor in the flat above them, saying that it was too noisy listening to the occupants walking around overhead. They demanded that a carpet be installed – at someone else’s expense, predictably.
Jackson LJ was not amused that the court’s time was being wasted on what he considered a pointless piece of urban sniping. “A moderate degree of carpeting in flat 8 might reduce the noise penetrating into flat 6 and still enable the occupants of flat 8 to enjoy their new wooden floor,” he pointed out, and then added: “This is precisely the sort of outcome which a skilled mediator could achieve but which the court will not impose. In neighbour disputes of this kind now before the court (and of which I have seen many similar examples) if negotiation fails, mediation is the obvious and constructive way forward.”
Referring to the total costs thrown away on the dispute as more than £140,000, he finished with the following barb: “If the parties were driven by concern for the wellbeing of lawyers, they could have given half that sum to the Solicitors Benevolent Association.”
Ward LJ agreed, and added a few words of his own: “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell, but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.”
His ire there was as nothing compared with the case of Beton v Streets [2008], in which he had to settle a boundary dispute between neighbours in one of England’s most exclusive suburbs, the St George’s Hill Estate in Surrey. He delivered the following opinion of the merits of the case:
“This is another of that hideous form of litigation called the boundary dispute, a form of litigation which is best not pursued. Just how much is this stupid piece of land worth? What you are arguing over is a few rhododendron bushes. If you live in St George’s Hill you’ve got money to throw away, presumably. But why throw it away like this? You’re all potty. Disputes of this kind are a most hateful form of litigation. Go away and sort it out.”
Perhaps the best example of a judicial dressing-down of spoilt suburban malcontents comes not from Surrey or London, however, but from Canada, in the case of Morland-Jones v Taerk 2014 ONSC 3061. The case arose in a leafy Toronto suburb. The neighbours began spying on each other, both in person and by CCTV cameras. Their complaints about each other concerned such weighty matters as a dog relieving itself on the lawn, cars being parked on the other side of the street (legally, but outside the other’s house) and staring at each other across the street. Justice EM Morgan dismissed the case in appropriately brusque fashion. The extract picked out below is drawn from the judgment, and provides but a sample of the judge’s damning prose.
It is confusing how highly intelligent people who achieve great success in their professional life can show such small-minded lack of judgement in their personal lives. Whatever the explanation, we can rest assured that irrational intransigence induced by boundary fences seems to be a universal human trait, rather than a peculiar offshoot of English snobbery. We can be equally assured that the law of property will continue to be enlivened, if not always intellectually enriched, by quarrelling neighbours.
No patience for fools
An extract from Justice EM Morgan’s judgment in Morland-Jones v Taerk
The parties to this action live across the road from each other in Toronto’s Forest Hill neighbourhood. In this motion, the plaintiffs seek various forms of injunctive relief on an interlocutory basis. It all flows from the plaintiffs’ allegation that the defendants have been misbehaving and disturbing their peaceful life in this leafy corner of paradise.
The hearing before me started off with counsel for the plaintiffs playing a short excerpt from security footage shot by the plaintiffs several years ago, in which Ms Taerk is seen performing a “poop and scoop” after a dog did its business on her front lawn. The plaintiffs’ security camera shows her crossing the street with the plastic bag-full in hand, and then walking toward the plaintiffs’ driveway where the garbage cans were out for collection. Although the impugned deed actually takes place off camera, Ms Taerk can be seen moments later returning to her side of the street empty-handed…
The “dog faeces incident”, as counsel for the plaintiffs calls it, is a high point of this claim. At the hearing, it was followed by counsel’s description of a cease and desist letter sent to the defendants in 2008 by a lawyer then representing the plaintiffs, which describes what is now referred to by counsel as the “dog urination issue”. This letter enclosed photographs – apparently stills taken from the plaintiffs’ non-stop video footage – documenting Mr Taerk walking his dog and occasionally allowing it to lift its leg in a canine way next to the bushes lining the plaintiffs’ lawn…
In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the plaintiffs and the defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community…
There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.
There is no serious issue to be tried in this action. The plaintiff’s motion is therefore dismissed. There will be no costs order. Each side deserves to bear its own costs.
James Wilson is an independent legal author. His latest book is Trials & Tribulations: Uncommon Tales of the Common Law (Wildy, Simmonds & Hill, 2015). With thanks to Helen Sheridan.
