Land Law and the Properties - Essay Example

?Land Law: Case Studies The case scenario indicates that Bill is now in arrears with the repayments of a loan which was secured over his property.Hence the lender, Alan, has the right to attach the property owned by Bill. The following session will discuss the legal proceedings with respect to three particular scenarios. In all the three cases, the creditor (Alan) is obliged to pay debtor (Bill) any amount which is greater than the outstanding loan. A. the property is Bill’s home In order to attach the property of Bill, Alan has to obtain a ‘writ of attachment’. A writ of attachment can be simply defined as “a written order issued by a court, authorizing and directing a law enforcement officer to attach specified properties of persons or entity against whom the writ was given” (Online encyclopedia, n.d.). If the court issues an order to seize the property of the debtor after the judgment, it is called writ of execution. It must be noted that attachment is a prejudgment remedy either at the time of a lawsuit or immediately after it is filed. However, the final decision is taken by the court. The United Kingdom does not have unique or singular law regarding bankruptcy. England and Wales follow same system whereas Northern Ireland and Scotland have another system of their own. If the given scenario is related to Scotland or Northern Ireland, and if the property is the home owned by Bill, then the section 40 of the 1985 Act will be applicable to the case. Instead, if the system of Wales and Ireland is applicable to the context, Alan will have to rely on the Part IX of the Insolvency Act 1986. At this juncture (as the jurisdiction is not specified) the system of Northern Ireland and Scotland is taken for case analysis. The section 40 of the 1985 Act protects the interests of the debtor’s (here Bill) family and prevents the creditor (here Alan) from selling the debtor’s ‘family home’ without either ‘relevant consent’ or a court order. While dealing with the sequestration of a property, the legal settlers first need to identify whether the property falls under the category of a ‘family home’. The subsection 4(a) defines a family home as “any property lived in by the debtor with his spouse or civil partner or by a present or former spouse or civil partner without the debtor, or by the debtor without a spouse or civil partner but with a child of the family” (Insolvency - personal and corporate, n.d.). Hence, if Bill’s property is the family home, Alan needs to comply with the section 40. This section clearly states how the consent can be obtained for the proceeding of the sequestration of a family home. Referring to section 40, if Bill’s spouse, civil partner, or former spouse or civil partner lives in the home (with or without the debtor), it is necessary to obtain the consent of the spouse of civil partner to proceed with the sequestration (Insolvency - personal and corporate). If the debtor lives in the home with a child but without a spouse or civil partner, then the ‘relevant consent’ can be obtained from the debtor. If the ‘relevant consent’ is not obtained from the parties concerned, Alan has to obtain a court order to attach the property of Bill (ibid). In this case, it is advisable for Alan to obtain a court order because other options may not be so sensible. B. the property is a tenanted office block Under this case, attachment of property will be a difficult task if the agreement between Bill and the tenant was formed before the agreement made between Alan and Bill. It is the duty of the creditor to make certain that the security offered for the borrowing is free from any liability arising out of issues like tenancy. Hence, if Bill’s office block was tenanted at the time of the agreement between Alan and Bill, Alan cannot attach the property of Bill unless the tenant is willing to vacate the office block. On the other hand, if Bill’s office block was tenanted after the agreement between Bill and Alan was made, Alan may get a court order for the attachment of Bill’s office block. However, Bill has a legal obligation to rent the office block to the tenant for the contracted period. As a result, if Bill demands the tenant to vacate the office block, the tenant may file a suit against Bill alleging the breach of the agreement. Under this circumstance, the court may issue a stay order prohibiting any further transaction over the property. Here, the possession of ownership rights over the office block may only be transferred to Alan. In other words, Alan cannot complete the attachment procedures over this property as long as the tenant is allowed to use the office block by the court. In this particular situation, Alan had better allow the tenant to use the office block until the contract period between the tenant and Bill is expired. Otherwise, the lawsuit may go endless. C. the property is a holiday home that Alan would like to own himself Under this scenario, Alan does not have any barrier in obtaining a court order permitting the attachment of the property. Here, Alan is responsible for admitting the clients who have booked holiday home services in advance. In the particular case context, it is recommendable for Alan to try to obtain a ‘writ of attachment’ order from the court as it may increase his possibilities of getting the ownership of the holiday home. 2. It is not very easy to distinguish between tenancies and licenses under some circumstances. However, it is particularly important to identify whether an agreement is license or tenancy because rights and responsibilities of both the owner and the occupier are different under tenancies and licenses. In order to distinguish tenancies from licenses, courts give some specific conditions concerning the distinction between the two. According to courts, holiday settings and business tenancies where the landlord often provides services like cleaning or meals are licenses. If the landlord charges little or very low rent or he/she provides the accommodation for charitable purposes, the agreement is considered as a license. Courts opine that if an employer provides the accommodation which is essential for the employee to live in that facility so as to do his/her jobs properly, then the agreement between the employer and the employee is termed as a license. Likewise, if the landlord shares all or some parts of the accommodation (for instance; kitchen or bathroom), the agreement will fall under the category of license. “If an occupier has exclusive use of part of the accommodation, but also shares another part of the accommodation, such as a communal living room or kitchen with someone who is not the landlord, this constitutes a tenancy” (Private tenancies, n.d.). In the case Street v Mountford, the court made an important judgment that clearly distinguishes a tenancy from a license. The judgment delivered by Lord Templeman states that an individual lives in a residential accommodation at a rent for a specified period of time can be either a tenant or a licensee (Clements et al 1996, p. 25). If the landlord provides services to the occupier in order to get unrestricted access to his premises, then the type of agreement is called license (ibid). Here, the lodger does not have the right to call the place his own although he has the right to live in the premises. In contrast to this, the occupier is provided with exclusive possession of a residential accommodation for a fixed term at rent but no services by the landlord under a tenancy agreement (ibid). 3. Here, Delia can sue Patrica for some of her acts. From the case study, it is obvious that the former occupant (Geraldine) of the No. 1(a) granted Delia a right of way by deed. Since Delia was granted the right of way by deed, it is still valid even though the ownership of the property has been transferred. In other words, the transfer of ownership of the property will not invalidate the deed. Therefore, Patrica does not have the right to harass Delia for using the shortcut over the rear of No. 1(a). Here, Delia has the legal right to use the way over the rear garden of No. 1(a). The case scenario says that sewage pipes for No. 1(b) run across No. 1(a). The easement rights are applicable to this particular case context. “An easement is a right or privilege one party has to the use of land of another for a special purpose consistent with the general use of land” (Jacobus 2009, p.37). Hence, Delia has an easement right to continue the use of sewage pipes passes through the land of Patrica. The King v. Kromwell [2002] is an example for this case. In these two cases (way and sewage pipes), Delia can sue Patrica in a court of law. However, Delia cannot legally demand storing of logs in Patricia’s garden shed because Delia possesses a garden to store her logs. Finally, other benefits enjoyed by Delia including car parking are not necessities in Delia’s life and therefore she is less likely to obtain favorable court order. Therefore, it is suggestible for Delia to find alternatives for car parking, TV aerial, and other needs. References Clements, L. M et al (1996) Housing Law: Text, Cases and Materials. Routledge. Insolvency - personal and corporate. [online document] available at http://www.ros.gov.uk/public/about_us/foi/manuals/legal/text/ch5~2.html [accessed 10 Jan 2013]. Miller, R. L & Jentz, G. A. (2010) Business Law Today: The Essentials. Cengage Learning. US. Private tenancies. Department for Social Development in the Northern Ireland [online] available at http://www.dsdni.gov.uk/private-tenancies.pdf [accessed 10 Jan 2013]. Online encyclopedia. Look up: Writ Of Attachment [online] available at http://www.encyclo.co.uk/define/Writ%20Of%20Attachment [accessed 10 Jan 2013]. Jacobus, C. J. (2009) Real Estate Principles. Cengage Learning. Read More