This matter, in which Wilmot’s litigation successfully represented Abbahall before the Court of Appeal, involved a rare yet problematic ‘flying freehold’. A flying freehold exists when a freehold overhangs or underlies another freehold. Since they rarely have adequate rights of support from the structure beneath or rights of access to make repairs (and subsequently are rarely accepted as security for a mortgage), flying freeholds are rarely created willingly.
In May 2010 a claim was brought by the seller of a business against its purchasers. Shortly before trial the 1st Defendant went into voluntary liquidation and the 2nd and 3rd Defendants (who were directors of the 1st Defendant) then acted in person until they instructed new solicitors very shortly before the trial. Prior to the liquidation the same solicitors had acted for all three Defendants. The Claimant was successful in its claim against the 2nd and 3rd Defendants, the claim against the 1st Defendant being voided as a result of its voluntary liquidation.
This is a case where the Claimant was initially refused an injunction but granted damages for noise nuisance caused by the activities of a boat racing club. The owner of the property appealed seeking an injunction restraining the club from activities which caused a noise nuisance. The Court of Appeal granted the owner of the property not only damages but also an injunction restraining the club from those activities which caused a nuisance to the owner of the house.
“A house and grounds are put on the market. A prospective buyer looks them over and decides to buy. Before contracts are exchanged, the vendor removes valuable fixtures without telling the purchaser. The purchaser exchanges and completes in the reasonable belief that he is buying the property he was shown. Common sense and common decency both suggest that, if there is no good reason to do otherwise, the law ought to give the purchaser what he was led to think he was getting.”