Claims based on personal obligations relating to land

It follows from Webb that proceedings to enforce, rescind, dissolve, or otherwise deal with, a contract for the sale of land do not fall within Article 22( 1 ). According to Professor Schlosser, the personal character of the action, the fact that it is an action against a vendor to compel performance of, or to annul, the obligations of a contract, is decisive. The personal character of the claim overshadows the fact that in English law, and in some other systems as well, the purchaser under a contract for the sale of land may be regarded, prior to completion and in some sense at least, as the equitable owner of the land. It followed in Gaillard v Chekili.²¹ proceedings brought to rescind a contract for the sale of land were held to fall outside Article 22(1). It equally followed in Schmidt v Schmidt²* that proceedings brought to rescind a gift of land, on the basis that it had been obtained by undue influence or had been obtained from a person who lacked capacity to make the transfer, fell outside Article 22( 1). Proceedings which found on a right in personam for the purpose of obtaining a right in rem do not fall within Article 22(1). It might also have been said, echoing Webb v Webb,-² that the facts and matters said to justify rescission or setting aside, and which the court was called upon to determine, would have been just the same had the gift been of shares or of a yacht: the fact that the gift was of land was a fact but not a material one. In effect, where the proceedings call for the adjudication of a personal obligation, which may, when adjudicated, have an impact on land in a Lugano State, the proceedings do not themselves have that land as their object.³⁰

It should follow that a claim by a non-owner for a declaration that (for example) the family home is held on constructive trust for the non-registered spouse or partner is not within the Article. The claim in such proceedings seeks to establish only an equitable right to a share in property arising from an agreement, and in any event does not depend on rules of law peculiar to land.³¹ A claim that a person under disability should be given permission to dispose of land in his name does not depend on rules of land law, but is wholly based on the law of personal capacity.³² And it may also be thought to follow that claims brought in respect of a tort or other non-contractual obligation which relates to land, which are based on the personal obligation of the tortfeasor not to commit a wrong, and on the right of the claimant not to be wronged, are for the same reason outside the Article. This would be consistent with Land Oberosterreich v CEZ, and might be thought to offer a smoother path to the actual decision.³³

In Коти v Komu^u proceedings were brought in Finland for judicial partition and sale of Spanish land held by the claimants and defendants as co-owners. The proceedings were characterised by the Court as designed to terminate and transfer legal ownership; and because of their erga omnes effect, they fell within Article 22(1). In truth it is not easy to say whether the proceedings were designed to obtain legal title or to enforce aspects of an existing legal title, for in the context of the case the two effects were indissociable. However, if the right of a co-owner of legal title is to obtain a judicial dissolution of a tenancy in common, Коти can be seen as a case in which a claimant legal owner founded his claim on one aspect of his existing legal title; the decision is sufficiently in line with the prior jurisprudence of the Court.

The same cannot be said of Weber v Weber,^[1] which on this issue is very challenging. Given that proceedings brought to rescind a contract for the sale of land are not within Article 22(1), proceedings seeking to enforce a contractual right to purchase land against, and to obtain consequential relief from, a third party who took the land subject to that contractual burden cannot be within it either. But in Weber the Court proceeded on the basis - it is not clear how hard the contrary was pressed -that the claimant, seeking to enforce the contractual right to purchase against a third party who had taken the land subject to it, founded on a right in rem in the land. The explanation given was that the exercise of the right of pre-emption in that case would have had effect on all the parties involved in the proceedings, but what was true of the estate contract in Weber was equally true in Webb v Webb, where it counted for nothing. It is correct that the litigation in Weber was designed to settle which of two persons was entitled to the land and to be registered as proprietor of it, but that also had been true, and irrelevant to the application of Article 22(1), in Webb. It is correct that in Weber the claim was against a third party to the original contract, whereas in Webb it was against the original trustee; but the right relied on in each case was a right in personam', under a contract in Weber, and under a trust in Webb. In the end, the Court may have been swayed by the illegitimate perception that a dispute between two elderly German sisters, one of whom had transferred her share of German land to her Italian son, should be determined in Germany. That does not make the case right.

In Magiera v Magiera, one of two joint tenants of the legal estate of English land applied under Trusts of Land and Appointment of Trustees Act 1996, Section 14, for an order that the land be sold and the proceeds divided. The court applied Коти to conclude that the English court had exclusive jurisdiction. As the claimant was joint tenant of the legal estate, it was not difficult to characterise her claim as being to enforce an incident - the right to apply for relief under Section 14 - of her legal title. Had she not been on the legal title, but applied under Section 14 as beneficiary of a trust of land, it is to be supposed that the result would have been otherwise.

• [1] C-438/12, EU:C:2014:212, [2015] Ch 140. 2 [2016] EWCA Civ 1292, [2017] Fam 327. The analysis in Ashurst v Pollard [2001] Ch 595, in which a trustee in bankruptcy sought orders against the bankrupt that he cooperate with the trustee to allow the trustee to sell the bankrupt’s Portuguese land, has been overtaken by the analysis in Коти.