A Buckinghamshire landowner has failed in her Appeal Court attempt to overturn a High Court order under which she must transfer her land to her neighbours.
The purchasers of one of six houses constructed on a former derelict farm in Fawley negotiated a right of pre-emption in their 1985 conveyance. This stipulated that, if no planning consent for the development of a neighbouring site were obtained, the owner of that site would not sell the land for 20 years without first offering them the opportunity to buy it.
They instructed their solicitor to register the right of pre-emption as a Class C(iv) land charge, but the solicitor failed to effect a valid registration.
In 1991, the owner of the neighbouring land transferred it to his wife after being told by his solicitor that the right of pre-emption had not been registered and that, in those circumstances, his wife would be free to take possession.
In the High Court, the judge held that, in spite of this, the pre-emption right was an interest in the land by which the former owner’s wife remained bound.
Challenging that decision, Peter Birts QC, for the appellant, argued that “given the wording of the covenant containing the right, the judge ought to have held that no positive obligation could be implied from its terms and that, since it did not include the vendor’s successors in title, on its proper construction, it was not, in contrast to other covenants, intended to bind them”.
The Appeal Court judges have dismissed the challenge, and are set to give their reasons, in writing, at a later date.
Fisher and another v Merer Court of Appeal (Potter, Mummery and Arden LJJ) 8 May 2003.
References: PLS news 9/5/03
