LAW 1511 Property Law : Essay Fountain

Question:

Phi aril Lire are btenssted in buying a large Victcrian !lease Mich stands in 4 acres of land. The house itself ccoSsIs of He bedrooms nth an en-site b be master bedroom. a large buge,d room and shrty, ands fey fitted kitchen. There O also a farnty babrocrn. There is every largeccnservatcry looking out onto the garden. In be garden, which is lab exteresiely to law,. here are several large tees, a shrubbery and a kitten garden. In the kitchen garden. there are soft fnAt bushes indicting tiackarrarr bushes. gooseberry bushes and blackberry bushes. There is also a herb garden. Near fee house is a large greenhouse which is kit of geraniums and tomatoes. The greenhouse stands on a anal trick Sotriclaion vhich is concreted in to the grand. It has mars water and electricity. Fuller rkrorn be garden there is a large su”rrnerecuse and a gard en shed. The shed is freestanding cn a ccricrete pleb. but be summerhouse is affced b the Land and has electricity and Wi-F but no makes water.
 
Father donna the ga rden there is a statue of John Leval which stands on a coriore le plinth which is affixed to the grand. In the turner near the bouldary wile the aecinkig property. there is a sea-tatty garden will garden seats. roses and vilkl flowers and fairy lights sting across it. There is a rodiery garden nth about 20 garden gnomes. A meandering steam bans the bouOary will the neighboring property.
 
In tie kitchen. there is an Aga, an integral washing machine and a dishwasher. Therese gold-plated mixer tape on be double sink wit. In be bane, Isere is a Persian rug on the Poor, and tapesties on tie veils. The stilly is fried will fitted bookshelves and is used as a games room with a large snootier table, together will a fitted bar in be caner.
 
(a) Expilaki to Phi and Lizzie what is meant by the term land and identify rib wens the stream
(b) Eezdain the ddference between bares and (brigs and how this is determined nth particular reference to
• the items in be garden (the greenhouse; he summerhouse; he kitten garden: the sensory and rockery garden; the garden shed; he statue) and • the items it he house (be Aga and kitchen %Oreg.:0:1s; he nig. be tapesties and the co-rents of the sixty)
 
 

Answer:

Introduction:

The word land denotes the portion of ground or earth and any fixtures that are attached to the earth, building, mines, minerals and certain airspace (section 205(ix) of the Law of Property Act 1925). According to the Act, when a land has been transferred, all the fixtures attached to that land are also transferred. This principle had been established in TSB Bank PLC v Botham (1996). 

Fences are the boundary property (Blaikie and Brookfield 2015). The owner of a fence is someone in whose property the fence is situated. In this case, Phill and Lizzie can claim for the meandering stream or bed of stream.

Fixture is the property that is fixed to the wall or to the ceilings of a building by the help of bolt or by applying cement. The Aga and the white goods if fixed to the wall is an example of fixtures. However, fittings are not required to be fixed by way of bolt or cement. The rug and tapestries are the example of fittings (Amodu 2017).

A notice is served with an intention to make the person aware of the fact whose rights and interest are to be affected will be treated as legal notice. In this case, it has been observed that both Phill and Lizzie wanted to buy a house and they wanted to include Purdey in the agreement in the form of joint tenancy (Council 2015). However, Purdey wanted to sell her portion and therefore, it can be stated that the matter may affect the rights and interest of the other co-owners and Purdey. Therefore, the notice should be treated as legal notice.

In Hammersmith and Fulham LBC v. Monk [1992] AC 478 (“Monk”), it has been held if more than one person possessed a land, it will be treated as joint tenancy. If anyone of the tenant wants to quit, he may serve notice to other co-sharers. Hence, it can be stated that Purdey has performed her portion of duties. Further, according to TOLATA 1996, co-owned land is regarded as trust of land and according to the law; a trustee can enjoy all the powers of an absolute owner.

In this case, it has been observed that the property possessed by Phill and Lizzie are based on joint tenancy. The term joint tenancy has been described under section 184 of the Law of Property Act 1925. According to the law, if the shares of the co-sharers are not been mentioned, they become tenant-in-common. In such case, any co-sharer can forced others to share their property.

The case is based on the matter whether any spouse can claim legal interest over a property after the break down of their marriage or relation. In England, there is no rule that give the spouse a right to claim their portion on a property where they are living for long time (Baum, Mackmin and Nunnington 2017). However, where both the spouses are investing their money in the property, they can claim for their portion of interest only after showing sufficient evidence. According to Stack v Dowden [2007] 2 AC 432, if the intention of the parties who are cohabiters to held a legal title jointly, they could enjoy the beneficial interest jointly. Therefore, Margaret should have to prove that she has invested in the property. However, if there is any cohabitation agreement made in between them, she can claim certain financial assets from her partner.

In Stack v Dowden [2007] UKHL 17, it has been held that a legal interest can be claimed in two ways:

  • If an informal agreement has been signed in between the spouses; or
  • Any direct contribution has been made by any of the parties while purchasing the property.

Certain provisions have been mentioned under the Trusts of Land and Appointment of Trustees Act 1996 that reflected in the case of Pankhania v Chandegra [2012] EWCA Civ 1438.

However, it is clear from the case study that the house was purchased by Felicity and was registered in her name. Therefore, her partner cannot claim legal interest on the property just on the basis that he had landscaped the garden.

Land registration is a process by which the right title interest of a person over a land has been established. If a land has been registered, the name of the purchaser will be recorded in the government book (Chinigò 2015). According to Land Registration Act 1862, the registration of land mandatory.

There are certain differences in between lease and licence that are as follows:

  • Lease empowers the tenant with an exclusive right in the property; Licence provides a permission to do something agreed between the owner and licensee (Gilbert 2015).
  • There must be a written or oral agreement in between the parties; whereas Licence do not need written agreement.
  • Legal interest has been created in lease. No such interest has been created in case of licence.
  • A lease can be created only when all the requirements of lease have been fulfilled [Street v Mountford (1985) AC 809]; otherwise the same will be treated as licence.  

Therefore, the Carole has signed a lease agreement and Margaret and Anne have signed a licence agreement. Carole gets all the benefits of lease agreement which Margaret and Anne could not be demanded.

Before 1925, all the lands of England were unregistered and the occupier has to face serious problems in case of transferring the land to others (Brennan 2015). Therefore, the process of register the land becomes necessary and after 1990, all the lands of England become compulsorily registered. However, there are certain differences present in case of registered and unregistered property:

  • In case of unregistered land, ownership could not be proved easily; where in registered land, ownership can easily identified.
  • The interest of the owner in case of unregistered land is hard to be established; but the owner will get all the legitimate interest in the land after his name has been recorded under the government department.
  • The terms of the title deed of unregistered land are illegible; where this kind of problem does not arise in case of registered land.
  • The types of ownership cannot easily be proved in unregistered property; but in registered land, all the particulars of the property have been mentioned.

The process of registration of land has been discussed under paragraph 3.1 of the Land Registration for Twenty First Century. A registered occupier of a land can enjoy certain benefits over the land, which is as follows:

  • The process of registration is quite liberal and simple and helps the occupier in case of newly registered property.
  • The copy of registered title is available in internet and the occupier can get a copy of land details at any time.
  • A detail description of land is provided once the property has been registered. The occupier can be sure regarding the boundaries of the property and this will help him in further proceedings.
  • In case of registered property, the owner needs no chain of ownership. The State government could verify his rights and interest over the property.
  • A registered owner could get more opportunities and protection regarding the land fraud.

It has been observed that the land of Richard and Rosemarie has not been registered and the neighbours are trying to encroach on their property. Under legal terminology, encroachment can be termed as adverse possession, which is regarded as a threat to the possession of the original occupier. In case of unregistered land, the possession can be proved in a complex way, as the boundaries are not mentioned properly in the deeds. Anyone can take undue advantage of it (Kerr, Johnson and Weir 2017). The neighbours in this case can claim for their rights and interest over the property. In such case, Richard and Rosemarie have to suffer many problems. Therefore, they are required to register their property on urgent basis so that the neighbours could not claim their interest on the property.

The legal doctrine to prevent business activities on unregistered land is known as restrictive covenants (Patel 2016). According to this principle, certain conducts are prohibited to apply in the specific land. The conducts can be categorised as erection of building structure, use the land for any business purpose or use the land for agricultural purpose. The most attractive part of the covenant is that the effect of the doctrine matters. However, every effect should be interpreted critically so that no provision of the covenant can be breached. This principle has been established in case of Dennis v. Davies [2009] EWCA Civ 1081. The restriction will be imposed on the original party to the covenant. However, no personal obligation will be treated as restrictive covenant.

There are two processes, which allow someone to use another’s land for their own interest such as easement right and adverse possession. In easement, a person gets a beneficial right over the property of others. The original owner of the land could not restrict a person to enjoy their easement right unless and until anything has been expressly stated in any agreement (Wysocki, Bu?ko and El?bieciak 2017). On the other hand, adverse possession is a right that cropped up when some person enjoy their possession over another’s property for a term of 10 years or more. However, the matter of car parking is a contentious issue and the right to park car on another’s land can be described by the doctrine of easement.   

The land of Richard and Rosemarie is an unregistered property. However, in case they want to register the land, they need to make an agreement where they have to put certain particulars. At first, the nature of the title should be mentioned i.e. whether the land is freehold, leasehold or common hold. After that, the details of the land should be mentioned. The next paragraphs will discuss about the easement right of the property. The provision of restrictive covenants should be discussed under the head of limitation.

It has been observed from the history of UK that before 1925 all the properties of UK were unregistered. However, after 1925, registration of properties becomes mandatory for almost everyone. Northampton shire is not an exception to this rule. It has been mentioned under the Law of Property (Amendment) Act 2002 that in case anyone wants to buy any property, he has to give a charge for stamp duty, which is an essential feature of property registration. Compulsory registration denotes that every landholder should have to come under the purview of registration (Heidenreich 2014).

Lease is a right by which the leaseholder will get certain interest on the property and he can enjoy all the rights until the lease period is not getting over. According to section 53 of Law of Property Act 1925, all the legal interest that will be created by the lease should be in writing (Richardson, Budd and Pitfield 2014). According to section 52 of the Act, the agreement should be created by a deed. However, in case of the leases that come under section 54 (equitable lease) is an exception to this rule. According to section 33 (2) (b) of Land Reform Act, any lease termed up to 3 years is not required to be registered.

In this case study, it has been mentioned that Ken wants to give lease to a tenant in the term of 10 years but he want to revoke the lease if any default regarding payment has been done by the tenant. The proprietor can forfeit a lease when the tenant makes any breach to the any covenant. According to law, a lease agreement is not revocable in nature and therefore, it can be advised to him that he could not revoke the lease agreement before the completion of 10 years. 

From the case study, it has been found that Ken and his father on 50% ownership have bought the property in Dorset. Therefore, it can be stated that the property has been owned as joint property. A property can be jointly owned by way of two types such as joint tenants and tenants-in-common. In joint tenants, each tenants will have equal rights to the whole property and in case any of the co-tenant die, his rights and interest in the property will transfer to the other co-tenant (Pawlowski 2015). In case of tenants-in-common, a person can buy different shares in the property and like the joint tenants; property will not automatically transfer to the other co-tenants. However, the co-sharer can pass their share in the will.

Ken can only sell his share if he has bought the property as tenants-in-common.

According to the Law of Joint property, two types of ownership can be observed- joint tenants and tenants-in-common (Mason 2015). In this case, tenants-in-common is the suitable option that can be chosen by Ken. According to the rules, if Ken’s father has died, his rights and interest in the property will be transferred to Ken and Ken will get the property. Further, Ken can sell his portion of interest in case his father does not want to sell the holiday home.

According to the property law of United Kingdom, there are different registers present and each has different purposes. The purpose of property register is to define the particulars of the land including the nature of the title (Bhandar 2015). Details of easement right is also been mentioned in this sector. On the other hand, the purpose of the official copies of proprietorship register is to discuss about the rights of the owner in the property.

In UK, there are different kinds of mortgages existed (Mak 2015). However, in this case it has been observed that David and Anne bought a property with the help of bank loan. In this case, the nature of the mortgage can be fixed rate mortgage. In this mortgage, the interest of the mortgage is remained same and the term of mortgage repayment can be extended up to 10 years. A fixed rate mortgage is a process where the interest rate remains same and helps the person to plan his budget on fixed cost. The payment amount and loan duration remain same in this system. It sometimes used as an reference to the balloon payment mortgage. However, there are certain countries where this system is less popular. In UK, this kind of mortgage is can be seen in building societies to reduce the interest charges and lower the interest rate risk. 

In UK, the mortgagee will get certain remedies in case the mortgagor fails to make any default regarding the mortgage deed. The mortgagee can sell the property and he can appoint a receiver in respect of the property. All the necessary provisions regarding this has been dealt by section 101 of Law of Property Act 1925. One of the provisions has given certain equitable interest to the settler when the land is subjected to trust. The whole principle of equitable interest based on the equity that consists of fair trial and rights. This principle has been applied in case of contradiction. In DKLR Holding Co. Pty Ltd v Commissioner of Stamp Duties [1982] HCA 14, the court has decreed that every individual has an right of equity over their land.   

Peggy is advised to go for equitable mortgage in order to secure her arts and crafts business. In equitable mortgage, all the original title documents of the lender are been taken into possession and the documents are using as security substance in mortgage (Evans 2015).

There are certain remedies available in equitable mortgage. If the mortgagee has mere equitable charge over the property, he could not get the option of foreclosure of the property. The mortgagee could not bring an order of action for possession against other in case of equitable mortgage. In Lysaght v Edwards (1876) 2 Ch D 499, it has been observed that equity right has been established in Law of Property Act 1925. The proper application of section 52(1) of the Act has been established in this case law. However, according to this section, if contracts regarding the rights have not been written in any document, the subject of equitable right will not be established in this matter.

The meaning of mortgage is secure something for getting a loan. The mortgage-holder is giving certain property to secure the loan (Augustina, Dabara and Abdullahi 2016). However, in case of Roger, the amount of the business loan exceeds worth of his business and his house. Additionally, his wife is a co-sharer regarding the home. Therefore, the consent of his wife is necessary. He has to submit all the possible documents regarding the home and no objection letter from his wife is required in this case. In Royal Bank of Scotland Plc v Etridge (No. 2) [2002] UKHL 44, it has been observed that undue influence could vitiate the contract. In this case, learned court was of the view that every bank has the duty to ensure the interest of the customer so that they can get independent legal advice and in this manner, the customer will get equitable interest, which is just and fair to them. In case where any of the spouses has applied for a loan, the solicitor of the bank should have to consider that whether both the spouses are get equal interest from the same or not. In case, it has been observed that any one of the spouse get interest and other does not, there is an option for the bank not to accept the loan application and in this case, the other spouse has a right to get independent advice from the bank. 

In matter of Joe and Tina is based on easement right. It has been observed in this case that there is a long driveway in property A and B, which is the only access to the main road. Tina could not restrict this right, therefore, they need to mention about this right in their Sale Agreement, and therefore, they are obliged to give this right to others.

In this case, after purchasing the property, the interest of Brian transfers to Peter. Unless and until the agreement says anything about the right of Cherry, Brian has the right to use the parking space. The reason behind the same is parking space is the common area and it is also the easement right of Brian.  

The terms of “old lease agreement” can be changed according to the will of the proprietor and David is empowered to make amendments in the old lease terms. However, the said process should be done with the consent and in front of the executor of the will. The witnesses of the said will should have to present at the time of amendment.

If Jim lived in the property for more than 10 years, he will get a right over the same. In addition, he can claim for his interest over the property. No one could deprived him off from the property and he has the adverse possession right over the property.

The parties can file a suit in case of any rights has been infringed for breach made against equitable interest. The principle of equitable right has been based on the concept of equity and justice. When any incident has been taken into place, the primary duty is to assess whether proper rights and justice has been applied or not and whether the rights and interest of the individual has been secured or not. In the case of Joe, it is their legal obligation to provide right of easement to others. Brian has also certain easement right to use the parking space. Being an owner, David has the right to make amendments in the will; however, in this case, he has to consider the interest of Stephanie. In the last portion of the case, it has been observed that Jim has the adverse passion over the property and he can legitimately exercise the power. 

Operating covenants mean an agreement by which a tenant gets certain time to operate his business in the property and in most of the times; the same is used in case of lease (Williams and Williams 2015). There is no particular time limit mentioned for such covenant. Certain economic interdependence could be observed in this case. However, considering the facts of the case, it can be stated that the operating covenant could be drafted in a well manner; otherwise, that will lead to litigation. In this process, the tenants will get certain rights to conduct negotiation with the proprietor regarding the percentage rents and commercial use of the property. 

Considering the case study, it can be stated that the covenant is still enforced on the property. A covenant is consist of certain promises that has been mentioned in the deed. Considering the nature of the covenant in this case, it can be stated that it is a restrictive covenant. The terms of the restrictive covenants are binding in nature and penalties will be levied if buyer or the seller could not maintain any of the terms. Therefore, Matthew can better be used that land for private residence and talk to the property owner to make any changes regarding the condition of the covenant.

Reference:

Amodu, T., 2017. Rights as the Seeds of Regulation in UK Land-Use Planning. In The Intersection of Rights and Regulation (pp. 77-92). Routledge.

Augustina, O., Dabara, D.I. and Abdullahi, I., 2016. Mortgage Investment in Osun State: An Evaluation of the Role of Estate Surveyors and Valuers.

Baum, A., Mackmin, D. and Nunnington, N., 2017. The income approach to property valuation. Routledge.

Bhandar, B., 2015. By Registration: instituting modern property law and creating racial value in the settler colony. Journal of Law and Society, 42(2), pp.253-282.

Blaikie, P. and Brookfield, H. eds., 2015. Land degradation and society. Routledge.

Brennan, G., 2015. Defining Title Registration. In The Impact of eConveyancing on Title Registration (pp. 115-151). Springer, Cham.

Chambers, D., Dooley, J. and Finger, C.A., 2015. Preparing for the Looming Changes in Lease Accounting. The CPA Journal, 85(1), p.38.

Chinigò, D., 2015. The politics of land registration in Ethiopia: territorialising state power in the rural milieu. Review of African Political Economy, 42(144), pp.174-189.

Council, A., 2015. Housing-Your Tenancy Agreement-Joint Tenancy.

Duncan, W.D., Christensen, S.A., Dixon, W.M., Window, M. and Rivera, R., 2016. Property law review issues paper 4–Mortgages, Co-ownership, Encroachment and Mistake.

Evans, S., 2015. A Scrutiny of Powers of Sale Arising Under an Equitable Mortgage; A Case for Reining These in. Browser Download This Paper.

Gilbert, D., 2015. Dilapidations in the UK–diminution valuations. Journal of Property Investment & Finance, 33(3), pp.282-290.

Heidenreich, S., 2014. Education, registration and more. In Englisch für Architekten und Bauingenieure-English for Architects and Civil Engineers (pp. 209-219). Springer Vieweg, Wiesbaden.

Kerr, S., Johnson, K. and Weir, S., 2017. Understanding community benefit payments from renewable energy development. Energy policy, 105, pp.202-211.

Mak, V., 2015. What is responsible lending? The EU consumer mortgage credit directive in the UK and the Netherlands. Journal of Consumer Policy, 38(4), pp.411-430.

Mason, A., 2015. The interaction of statute law and common law. Judicial Officers Bulletin, 27(10), p.87.

Patel, A., 2016. Restrictive covenants on land: Common examples of restrictive covenants and the challenges of dealing with them on freehold land. Journal of Building Survey, Appraisal & Valuation, 5(1), pp.70-80.

Pawlowski, M., 2015. Joint Liability and Lease Guarantors. Property Law Journal, (331), pp.19-21.

Richardson, C., Budd, L. and Pitfield, D.E., 2014. Analysing the financial performance of US hub airports in relation to lease agreement types.

Schuster, R. and Arcese, P., 2015. Effects of disputes and easement violations on the cost-effectiveness of land conservation. PeerJ, 3, p.e1185.

Williams, P. and Williams, A., 2015. Managing Urban Intensification through Conservation Covenants. Instruments of Planning: Tensions and Challenges for More Equitable and Sustainable Cities, p.155.

Wysocki, P., Bu?ko, M. and El?bieciak, K., 2017, June. Establishment of the Right of Electricity Transmission Easement Through Court Proceedings. In Geodetic Congress (BGC Geomatics), 2017 Baltic (pp. 184-188). IEEE.

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