English Real Property: Legal Case - Coursework Example

?English Real Property: Legal Case Study The three types of ownerships have been discussed in the paper with regards to the case given. These consistof: 1. Sole ownership; 2. Joint ownership (Joint tenancy); and 3.Tenancy in common. All the parties in the case are some or other way related to the property of Jenny. The case is discussed with the help of three major questions. Legally both Pam and Katie have interest in 1010 Central Road. It is because to some extent both are associated with the property, directly or indirectly. Jenny is the property owner, the sole owner of the property as per record. Pam is Jenny’s mother and she is likely to get her share in Jenny’s property as a beneficiary interest by “The Law of Property Act 1925,” but Katie has hardly any chances to get her share due to certain legal terms. Facts of the Case: Jenny started her business and she bought a shop at 43 Main Street in 1990 in her sole name. Jenny, thus, was the sole owner of the property though Pam’s financial share is involved in the property. Being a sole owner of the shop, Jenny has more rights than Pam, though Pam’s financial share is more than Jenny. According to Land Registration Act 2002, if only one name is there on the Land Registry or the title deeds of the property, then only that person becomes the legal owner. Thus, Jenny is the legal owner and she has more rights than the co-owner Pam. However, if the relationship gets spoiled between the two people due to some or other reasons, both of them may have rights to live in the property or to get share of the profit if it is sold as per share in terms of money contributed by each. Actually this area of law is very complicated. The rights depend upon the personal circumstances. In this case it has been mentioned that Pam offered 80% amount to buy the shop, but it is not mentioned whether there was any written agreement between both of them regarding the financial share. But even if there is no formal written agreement, the co owner, that is Pam, may have a right to a share of the value of the property if Evidence in writing to show that she should have share She has a verbal agreement (such as if she gave up somewhere else on the understanding that she would be able to stay long term) She had paid towards the deposit or made mortgage payments. [1] Sam had previously been the boyfriend of Jenny and both of them bought the property of 101 Central Road which included a large shop on the ground floor and two residential flats on first and second floors and by law became Joint Tenants. For buying this property Jenny sold out her old shop and collected 50% of the purchase amount from it. 10% was paid out of Jenny’s personal saving account. By doing this, she had not returned back the 80% of the amount to her mother who gave it to her for buying the old shop. So among 50%, logically thinking, 40% of the share of old property belongs to Pam. In such case she had around 40% share in the new property. Jenny also has the equal share because in the previous property she had a share of 10%. She bought the new property for which 10% share was generated from her own saving account and for remaining 40% amount she took a loan and She and Sam (her boyfriend) both have the responsibility equally for the repayment of the house. 1. The information is taken from the content “Sole Ownership,” website: http://england.shelter.org.uk/get_advice/finding_a_place_to_live/Buying_and_selling/buying_with_other_people/sole_ownership So the calculation of share will be: 40% belong to Pam, 40% belong to Jenny and 20% belong to Sam. The court may award a share to Pam where there is the evidence of an intention to share asset equally or to hold assets jointly [2] It is mentioned in the case that Sam and Jenny became the Joint owners. Under the agreement of Joint Tenancy, the joint owners together own the whole property and do not have a particular share in it. If one of the owners dies, the other owner automatically becomes the sole owner. Though Jenny and Sam, as the joint owners are equally entitled to the property, they cannot execute their Will to choose to whom their ‘share’ of property to pass. On the other hand, it must pass to the surviving owners. As stated by James Karp, Klayman and Gibson, “The principal feature of the joint tenancy is the right of survivorship. On the death of one of the owners, that person’s interest passes automatically to the surviving joint owners.”[3] So Jenny automatically becomes the sole owner of the property even if Sam has made the will to give his property in Kathie’s name. The legal term for joint owners is Joint tenants, which might be confusing. The word “tenant” has nothing in relation with the ordinary meaning of the word ‘tenant,’ as the concept of landlord and tenant relations. The ownership between two persons can be of two kinds: “Joint tenancy” and the “Tenancy in common.” Unlike Joint tenancy, the tenancy in common, if one of the owners dies, that person’s interest does not pass automatically, to the surviving owner/s. On the other hand, it will pass according to the person’s Will or under the rules of intestacy. So the owners can make a Will leaving his /her share to the owner/s or leaving it to someone else together. 2. Midland Bank v Cooke [1995] 4 All ER 562 3. [2003] James Karp, Klayman and Gibson When the property is, thus, held in such manner, it is necessary to have the declaration of Trust, either in the deeds or separately, which states the proportion owned by each of the joint owners. Let us first consider Sam’s Will. Sam has executed a will, and as per the will, he gives all his property to his girl friend Katie. First of all, it is necessary to check whether Sam’s Will has been probated. Probate is the legal process by which the Will of the deceased person is proved to be valid and then his property is handed over to the beneficiary as per Will. After the sad demise of Sam, Katie is intended to get Sam’s share in the property. Katie had never been the owner of any of Jenny’s property. She was not connected with Jenny in any matter. Her relation with Jenny was just that she was the girlfriend of Jenny’s ex-boyfriend. Sam had not taken consent of Jenny at the time of making his will. Being the joint owner (Joint tenant), he cannot make such kind of will. [4] “As we have noted automatic inheritance by a surviving joint owner may be challenged in the courts on the grounds, that it was unintended. Experience indicates, however, that inheritance by the survivor of the tenancy by the entirety is much less likely to be challenged successfully, apparently because the court feels that the co-owners really intended inheritance by survivor.” [5] Thus, the survivors in joint tenancy automatically become the owner of the property. [6] 4. Carr v Isard [2006] EWHC 2095 (Ch) 5. Theodore E Hughes & David Klein, [2007]. 6. Ward v/s Everlett 1Ld. Ray. 422. Can Katie force the sale of the property? If Sam and Jenny had made the owners under “tenancy in Common,” as in Palmer v/s Rich case [7] It would have been possible for Katie to claim on Jenny and Sam’s property. As it was the Joint Tenancy, Katie has no right to claim the property even if the Will is probated. So, obviously, she has no right to force Jenny to sell the property. It was against law. Does Flora have any remedy against Jenny? The case of Flora is different. She is neither a tenant nor an owner. But she has been staying in Jenny’s house for about 12 years continuously without interruption. As per documentary evidence Jenny is a owner of the flat in which Flora is living. As mentioned in the case Flora was a young teenager employed by Jenny as a part of charity scheme. She was homeless teenager and was living on no rent basis. It was a close bond between Jenny, Sam and Flora which allowed Flora to live in the vacant flat of Jenny and Sam. In the case, no where it was mentioned, that there was a written contract or agreement among these three persons regarding rent. According to Rent Act 1977, a tenancy is not protected a tenancy if: The tenancy is entered on or after the 1st April 1990, and if the tenancy is under the tenancy for the time being either no rent is payable or the rent is payable at the rate of, if the dwelling-house is in Greater London, ? 1,000 or less a year, and if the dwelling house is elsewhere, ?250 or less a year. In Flora’s case, the tenant act is not applicable to her as she has never been considered a tenant by neither Jenny nor Pam; it was Sam who had taken rent from her. Flora was living in the flat for more than 12 years. 7. Palmer v Rich [1897] 1 Ch 134. See also Greenfield v Greenfield (1979) 38 P & CR 570 (conversion of house into two self-contained maisonettes did not cause severance). She first possessed the flat on 1997 when she was a teen ager. Today she is 31 years old. In such case, Flora has a remedy against Jenny. If a person wishes to claim possession of a registered land or property, needs to occupy the land or the property for the period of ten years or twelve years. If the land is unregistered, the period is twelve years, while if the land is registered, the period must be ten years or if the time of occupation is ended before 2003. This kind of possession is called “Adverse Possession.” The Land Registration Act came into effect on 13th October 2003. This Act introduced a new legal scheme of possessing a land or a property by “Adverse Possession.” The details about Adverse possession are given in Chapter 9 of the Act. Acquisition the land by “Adverse Possession,” is a process by which the person who is not the legal owner of the land can become the legal owner if he or she has occupied the land or property for a certain period.[8] The rules which regulate the adverse possession are found in part 9 of Land Registry Act 2002. “The Doctrine of Adverse Possession allows an occupier of a parcel of land who is not the true owner to acquire title to the land without consent from or compensation to the ‘true’ owner.” [9] Adverse Possession has been well established in English Law and this legal principle has been adopted by many countries in land laws. English land is a democratic land and if one lives in a reasonably democratic country, he or she can proceed for adverse possession claims on real estate. So, Flora can definitely claim for the ownership of the house as she has been living there for 12 years or more.[10] 8. Emma Harwood – Solicitor, “Adverse Land Possession.” http://www.legalcentre.co.uk/property/guide/adverse-possession-of-land/) 9. Boudewijn Bouckaert 2010] 10. Inglewood Investments Company Ltd -v- Baker [2002] EWCA Civ 1733 Sometimes while taking such kind of action, the individual is likely to think from morality point of view. If Flora thinks that by possessing the flat of Jenny, she is being a Squatter, then she is wrong. Squatter is term used in a negative manner. If Flora had unlawfully occupied a vacant property of Jenny, she would have been said as a squatter. On the contrary, Flora’s occupation will be entirely lawful within the knowledge of owner and co owner and with their permission. Jenny knew that Flora had been living in her flat for twelve years. Secondly, Flora cannot be called a squatter, because she had never “brought down the neighbourhood,” means she had never involved in annoying to her neighbours. [11] Flora, in this case, is in a better position as the flat is her factual possession for the requisite period that is twelve years. For factual possession, [12] Flora, as a claimant, can acquire the flat by dispossessing the title owner that is Jenny. She can take the possession of the flat as it was abandoned by Jenny. “The occupation of the land must be without the consent of the owner. The claimant at the time of the possession must not be legally entitled to occupy the land, i.e. with the owner’s permission or under a legal interest such as a lease, licence or tenancy.” [13] For possessing the flat, Flora has to make an application to the Land Registry, accompanied by a statutory declaration or the statement of truth (a sworn statement). It has to outline the details of Flora’s (claimant’s) possession of the flat for the requisite period of time and without the consent of Jenny (the owner). 11. J A Pye(Oxford) Ltd v Graham [2002] UKHL 30 12. Powell -v- McFarlane (1977) 38 P&CR 452 13. Emma Harwood – Solicitor, “Adverse Land Possession.” http://www.legalcentre.co.uk/property/guide/adverse-possession-of-land/ “Paragraph1 provides that a person (the applicant) who has been in adverse possession (as defined in paragraph 11) for the period of ten years (60 years, where paragraph 13 applies) calculated as provided in the paragraph may apply to be registered” [14] When the application submitted by Flora goes to the Land Registry, they will send a surveyor to visit the flat in which Flora is living. He checks the property, takes the measurement of the area and checks the title plan. After the completion of the application, the flat will get registered and Flora will be granted absolute title to the flat. She will be granted as the owner of the flat. In particular circumstances, if there is insufficient evidence, Flora will only be granted possessory title. The evidence must show that Flora had been in adverse possession of the registered estate for a period which, if it were to continue from the date of the applicant's statutory declaration or statement of truth to the date of the application, would be not less than ten (or twelve) years ending on the date of the application. Flora also should show any additional evidence that will be useful to support their claim photos of the flat or supporting statutory declarations of friends or neighbours that proves that she has been using the land continuously and exclusively for the requisite period. Even if the land is not registered, still Flora has a right to register “The estate in respect of which the application is made need not have been registered throughout the period of adverse possession.” [15] 14. 247 paragraph 1 Schedule6, Registration of Adverse Possessor. Right to apply for registration 15. . 247 & 248 Paragraph 4 provides that if there is no such requirement then the applicant must be entered in the register as the new proprietor - paragraph 9 deals with the effect of such registration (and of registrations under paragraph 7). At present, where a squatter has been in adverse possession for the required period the registered proprietor holds the registered estate on trust for the squatter. When an application for registration is successful, in the case of a squatter in respect of a registered freehold, he or she is registered as proprietor of a new freehold title and the existing freehold title is closed insofar as it relates to the land squatted upon. In the case of a registered leasehold the squatter is registered as proprietor of that leasehold. Conclusion: In the above case the major persons involved in Jenny’s property are her mother Pam, her employee Flora, and her boyfriend’s girl friend Katie. a. In Pam’s case some ambiguity is there in the situation. Pam may get her share, it depends on the personal circumstances and documentary evidence. b. Flora can definitely claim for the property in which she has been living for years under Adverse Possession provision. Pam may get her share, it depends on the personal circumstances. c. In Katie and Flora’s case the picture is clear. Katie has never been able to get the share which she is claiming for after the death of her boyfriend. Sources: 1. The information is taken from the content “Sole Ownership,” 2. Website: http://england.shelter.org.uk/get_advice/finding_a_place_to_live/Buying_and_selling/buying_with_other_people/sole_ownership 3. Midland Bank v Cooke [1995] 4 All ER 562,taken from the website: 4. http://pntodd.users.netlink.co.uk/cases/cases_m/mid_cook.htm 5. James Karp, Elliot I. Klayman and Frank Gibson, Dearborn Real Estate Education,[2003], p. 79 6. Carr v Isard [2006] EWHC 2095 (Ch) 7. Theodore E Hughes & David Klein, “The Handbook to Wills, Funerals, and Probate,” Infobase publishing, 2007 p. 71. 8. Ward v/s Everlett 1Ld. Ray. 422. 9. Palmer v Rich [1897] 1 Ch 134. See also Greenfield v Greenfield (1979) 38 P & CR 570 (conversion of house into two self-contained maisonettes did not cause severance). 10. Emma Harwood – Solicitor, “Adverse Land Possession.” 11. http://www.legalcentre.co.uk/property/guide/adverse-possession-of-land/) 12. Boudewijn Bouckaert “Property Law and Economics,” Business & Economics 2010, p.183, 13. Inglewood Investments Company Ltd -v- Baker [2002] EWCA Civ 1733 14. J A Pye(Oxford) Ltd v Graham [2002] UKHL 30 15. Powell -v- McFarlane (1977) 38 P&CR 452 taken from E Lawessays, http://www.law-essays-uk.com/resources/revision-area/land-law/cases/powell-vs-mcfarlane.php 16. Emma Harwood – Solicitor, “Adverse Land Possession.” http://www.legalcentre.co.uk/property/guide/adverse-possession-of-land/ 17. 247 paragraph 1 Schedule6, Registration of Adverse Possessor. Right to apply for registration Read More