Developer loses appeal over four metres of land

By Simon Rocker, March 5, 2009

A property developer and his son have lost their appeal in an action that centred on a piece of land less than four metres wide.

Lord Justice Mummery told the Court of Appeal that the legal costs of the dispute between two London Sephardi families — Freddy Ezekiel and his son Mark, and brothers David and Haim Kohali — had “probably topped” the price of the original land deal.

In September 1999, the Ezekiels agreed to buy two plots of land from the Kohalis in Hendon, North-West London, for £300,000.

But a problem arose over a strip of land — between 3.5 and 3.9 metres wide — potentially affecting drainage and access to the site.

The Ezekiels, arguing that they believed the Kohalis owned the strip, launched legal proceedings in 2005, asking the court to rule that the land should be sold to them at a reduced price.

But they failed to persuade Deputy High Court Judge Sarah Asplin, who after an eight-day hearing last April, said the sale should go through at the original price. She rejected, however, the Kohalis’ claim for interest.

Lord Justice Mummery, who sat with Lord Justices Wall and Stanley Burnton, said the problems over the sale were “in practice, often dealt with, not by expensive High Court litigation” but by indemnity insurance “for a modest premium, lower than the escalating costs of litigation involving three counsel and three firms of solicitors”.

He noted that a month before the agreement in 1999, the Ezekiels had been warned by a solicitor “in no uncertain terms against signing or exchanging a contract” without seeing the Land Registry entries to the property.

Having obtained the registry documents, the solicitor sent them to the Ezekiels.

There was “ample evidence” for the deputy judge’s decision, Lord Justice Mummery concluded, that “on the balance of probabilities” the Ezekiels knew that the Kohalis’ title deeds did not cover the whole area of the plots.

Last updated: 3:40pm, March 5 2009