Elements of Land Law - Essay Example

?LAND LAW II Question In Street V Mountford (1985) AC 809 Lord Templeman pointed out that while, by definition, a tenant must have exclusive possession, an occupier who enjoys exclusive possession “is not necessarily a tenant” . Gray & Grey, Elements of Land Law, 5th edn, 2009, Oxford University Press, p.341 A refusal to distinguish lease from licence comes with so much trouble for tenants and landlords in the resolution of common land litigation issues. In answering this question, a number of premises are given to clearly distinguish lease from licence by explaining that lease leads itself up to an exclusive possession that makes the occupant of the property a tenant. However, in some cases where exceptions some exceptions are applied, the occupancy become only a licence even if there is an exclusive possession. These exceptions include: (a) An act of generosity (Helsop v Burns, which you already mentioned it) (b)Service Occupancy (Crane v Morris) (c) Occupancy by virtue of office (d) Occypancy prior to completion of contract of sale Indeed, by definition, the very first requirement for a lease is exclusive possession. Without an exclusive possession, there is no way a lease can be finalized. This is so because the exclusive possession taken by the person taking the lease, and hereby known as the tenant gives that person the right to exclude all people from the property in question. Such exclusion does not only involve third parties and people outside the transfer transaction but also includes the landlord and all agents of the landlord. This underlining legal phenomenon notwithstanding, it has been argued in most quarters of statutory practice that an occupier who enjoys exclusive possess is not necessarily a tenant (Gray and Grey, 2009, p. 341). A major premise to this argument is given in Street v Mountford [1985]. In the case, the court gave a clear judgment to the effect that a person’s occupation of a property could either amount to being a tenant or only a licence. What was rather very relevant in determining tenancy was the content of the agreement and not what the parties choose to call their agreement. This is in regard to what Lord Templeman stated while giving judgement that “an agreement for exclusive possession for a term at a rent creates a lease or tenancy, regardless of what the parties call it” Street v Mountford [1985]. Heslop v Burns [1974] is another case that throws some light on the statement that even though a tenant must have exclusive possession, an occupier who enjoys exclusive possession is not necessarily a tenant. In the case, it is seen that in situations where there is an act of generosity, charity or friendship, even if exclusive possession occurs, this may not amount to the occupier becoming a tenant if there are no intentions to create a legal relation. The fact of the case has it that a wealthy man allows friends to occupy his house for free without rent. This notwithstanding, the friends had exclusive possession; and latter the wealthy man died. Meanwhile in principle, it is contested that the presence of exclusive possession is only worth being regarded as a licence if it comes about as a friendly arrangement with no intentions to create legal relations. Indeed, the same basis of the principle was held in the judicial hearing, concluding that the arrangement was only a licence. This is a very clear confirmation that as posited by Lord Templeman, an exclusive possession is not always equal to a tenancy. In another case, of Rhodes v Dalby [1971], a premise is given to the effect that a person may have occupancy with exclusive possession but may not necessarily be a tenant. The fact of that case has it that a man who was travelling abroad asked a friend to live in his bungalow whiles he was away. Between the two parties, what existed was a “gentleman’s agreement”, ordering the friend to be taking care of the property and keeping it in shape. In the situation, and in situation of this nature, because the owner of the property leaves the property for a very long time, it is always advisable to render to the new occupant, an exclusive possession. However, the principle in the case had it that, regardless of the gentleman’s agreement and the exclusive possession, the occupant still did not have a lease. It was therefore held that this only amounted to a licence, regardless of the exclusive possession. The implication of this case is that in situations of service occupancy, lease cannot be said to exist even if there is an exclusive possession. Occupants are therefore expected to have the roles of their occupancy clearly defined by them in law and in principle so as to avoid all forms of legal doubts. In the case of Crane v Morris [1965] also, one sees a situation whereby not all occupants with exclusive possession have lease or can be claimed to be tenants. This is because the fact of the case has it that a farm worker managed to secure an exclusive possession to a cottage on a farm mainly on condition that he remained an employee of the claimant. Meanwhile with time, the farm worker ceased to be an employee of the claimant. The farm worker went to court claiming to be a tenant by virtue of the fact that he had an exclusive possession. But in court, the principle was established that service occupancy will render the arrangement nothing more than a licence, despite the fact that there was an exclusive possession. It was subsequently held that the agreement was a licence. In effect, this is another firm establishment of the bases of tenancy. As outlined by Lord Templeman (1985), a person does not necessarily become a tenant because such a person has exclusive possession. As a matter of legal principle, once a person takes up the possession by virtue of the person’s office or official duties as seen in the case of the farm worker, exclusive right to occupancy ceases the very moment the office appointment is terminated. Finally, the case of Norris v Checkfields [1991] gives another strong premise to buttress the point held by Lord Templeman. In this case, the fact has it that a coach mechanic was given a bungalow to use near a depot. After a while, the occupant of the bungalow was dismissed from his service. In the opinion of the occupant, the act of dismissal was unfair and wrong and so he had the right to continue to claim possession of the bungalow as his terms of reference to the bungalow included that he had exclusive possession. Meanwhile, the legal prinple behind the case established that this was another case of service occupancy and that the occupant was not a tenant of the bungalow. It was therefore held that the agreement was a licence. Imperatively, it will always remain wrong for people to try to manipulate the law on tenancy and exclusive possession by the use of any other definitions other than what is spelt out in the agreement. In all cases, possessory licences must not be mistaken for tenancy. And to avoid all forms of doubt, it is always advisable that occupants seek legal interpretation of their status of occupancy right from the initial stages of acquisition of exclusive possession because these exclusive possessions will not necessarily make them tenants. Question 2: “A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant” Sir Raymond Evershed Mr, Re Ellenborough Park (1956) Ch 131. Discuss the rules that will assist us in determining whether this essential characteristic of an easement has been complied with. According to Ellen borough Park, there are four major characteristics of an easement namely Dominant/Servient Tenement (London & Blenheim Estates V Landbroke), Accommodate The Dominant Land (Hill V Tupper), Owned Of Occupied By Different People (Borman V Griffith) and Capable Of Forming The Subject. The emphasis here is however on the latter. As part of the key characteristics of an easement, it is stated that “a right over land cannot amount to an easement unless it has capable of forming the subject matter of a grant (Evershed, 1956). This provision has been explained in different ways and given many different interpretations. Using specific legal rules and case laws however, there can be a clear distinction of case as to whether or not this characteristic of an easement has been complied with. The first of these rules has to do with the rule that the easement must not be so extensive that it would deprive servient owner of possession. In an easement, it is expected that there will be a dominant and a servient tenement parties. To a very large extent, the servient party is considered the original owner of the property. However, because the easement will somewhat give out right to work on the land to a new owner, it is expected that there will be a rule that will ensure that servient owner does not totally lose possession of the property. Rance v Elvin [1985] is a typical case where it was held that there would not be a positive obligation on a servient owner because the arrangement and terms of agreement seemed to deprive the servient owner of possession of the land all together. The second rule that applies touches on the fact that there must not involve any expenditure on the part of servient owner. Legally, the servient owner is the party of the easement that is gaining the burden of the easement. Such levels of burden may be defined by virtue of the fact that it is that party that may be losing out on the piece of property in question. To this end, the rule protects this party who is already carrying the burden of the easement from incurring any further cost. The cost incurred in the processes of tendering the easement effective is known as the expenditure. Therefore the characteristic of the easement that states that the ease must be capable of forming the subject matter of a grant cannot be said to have been complied with if the servient owner incurs any expenditure. This point notwithstanding Crow v Wood [1971], gives a clear case where there could be an exception when it comes to the maintance of the boundary fence between properties. This is because in the case, it was held that “the right to have a fence repaired lay in grant, and so could pass under LPA 1925 section 62” (Crow v Wood, 1971). Therefore since the plaintiff failed to fence the land, she could not complain of cattle trespass. In the third instance, the rule provides that for the subject matter of grant to be duly formed, the agreement must be within the general categories of established easements. The very idea that this rule and provision gives is that there are existing categories of easements used that are not part of the generally categorised established easements. In such a situation, parties in a case in any competent court of jurisdiction cannot expect to have a type of hearing that covers the generalised categories of established easements. Once this happens also, it would mean that the rights that parties working under the general categories of established easements enjoy cannot be enjoyed by the defaulting parties. In Reilly v Booth [1890], a similar case was heard where the fact of the case has it that the plaintiff engaged in a series of activities in a bid to getting an easement to a third party such that there was an exclusive and unrestricted use of a piece of land. Meanwhile, this does not conform to the general categories of established easements and so the agreement could not be considered as an easement. Furthermore, the rule provides that the agreement must be made capable of reasonably exact definition. This aspect of the rule on the characteristic of an easement that talks of forming the subject matter of a grant provides that for an easement to be finalised, its agreement must not be vague or uncertain. In often times, the parties involved in the creation and formation of the agreement tend to use uncertain and vague contents that do not amass to a clearer definition of the terms of agreement. It is however expected that a claim must be capable of a definition if it would form the subject matter of a deed of grant. In the duties of the court, it expects that the interpretation of the law will be made as easily as possible. As a matter of principle, the court cannot make ruling based on ambiguity of claims and thus the need for the claim to be reasonably exact on its definition. In the case of Harris v De Pinna [1886], it was held that the rights of lights, water, air and other similar properties were not taken through define channels and so the defendant was not at fault of defaulting and that the absence of definition could not protect the plaintiff under rights in an easement. The final rule under this provision has to do with the capability of a grantor and a grantee. The premise of this rule has it that in the determination of the case in any court of competent jurisdiction as to whether or not an easement prevails, the sitting judge must know clearly the parties involved in the agreement namely the grantee and the grantor. It is for this reason that this provision of the law has been made that there must be a grantee and a grantor, who do not just exist as parties to the agreement but must also be able to either transfer or acquire a piece of property by grant. The law requires the clear identification of these two parties because for an easement to go through the requirements of legal provision, it must define the roles that each party will play. The absence of the grantee and the grantor would therefore mean that the roles needed to be played cannot clearly be distinguished among the parties. In Simmons v Dobson [1991], the facts have it that both the plaintiff and defendant were leaseholders under the same landlord. However with time, the plaintiff claimed a right of way for all purposes and all times over and along a passageway on the defendant’s premises. Meanwhile, the court found that the terms of grantee and grantor was not well defined between the two parties. In effect, there was no case in the judgment that could directly decide that there had been no lost modern grant by or to any of the parties. Question 3:Explain the various courses of action open to a developer-landowner of servient land who wishes to carry out a development that would breach a restrictive covenant. In the agreement between landlord and the tenant, it will be noted that there are clearly outlined roles that each party ought to play. To the landlord, reference could be made to a restrictive covenant. In some cases, these roles are not fulfilled by the parties. It is for this reason that remedies or courses of action have been made open to parties to involve in cases there are breaches on restrictive covenant. The first of these is rent strike, allows the tenant to go ahead with repair works that were deemed to be carried out by the landlord. Subsequent to carrying out the repair, there is a deduction of cost of repair from the rent expected to be paid. In Lee-Parker v Izzet [1971], the fact of the case has it that a landlord was in breach of obligations to carry out repairs. Subsequently, the tenant carried these repairs out and claimed to deduct the cost of repairs from future rents that he was expected to pay. It was held that the tenant could indeed withhold the amount of repair. However it is important to stress that it is not allowed for the amount for recouping damages or the entire rent to be withheld. The next form of course of action available to the tenant in an event where landlord fails to carry out duties and thus breaches a restrictive covenant is specific performance. Specific performance is covered in s 17(1) of the Landlord and Tenant Act 1985. According to the Act, when a landlord breaches part of his repairing covenant, the court may order specific performance of the covenant. A typical legal application of this provision is seen in Jeune v Queen Cross Properties where the facts have it that the landlord refused to perform his repair roles and was dragged to court by the tenant. It was held that specific performance was issued against the landlord’s repairing obligation, and he was subsequently compelled to carry out specific work. Indeed, in consonance with the Landlord and Tenant Act 1985, the specific performance was ordered whether or not the breach related to a part of the premises let to the tenant. In the third instance, there is the appointment of a receiver as a course of action available to the tenant. Here again, it must be noted that the ownership of the landlord is protected by the court that appoints a receiver. And that the appointment of the receiver is done only under the instructions of the court and for the purpose of taking over management of the property and not ownership of it. Once this process is carried through, rents are now payable to the receiver and no longer to the landlord. Again, the idea is not to deprive the landlord of the rent and so the cost of repairs care duly calculated and money from the rent is used to pay for the repairs. In a wrong application of this remedy, one may breach the s 37 of Supreme Court Act 1981. In United Scientific Holdings v Burnley Borough Council [1977], it was held that rent review clause was breached while trying to apply appointment of receiver. The entry into long term repair contracts and in some cases, the mortgaging of property is therefore advised against. Furthermore, there is a provision for local authority action, which comes as a court order for the council to serve notice that requires immediate repairs to be carried out by the landlord. The application of this course of action is such that the court gives the local authority to enter a house, flat or block that is found to be in despair and issue out a notice, spelling out specific repairs to be carried out. This notice service is often time bound and so after the said time, if the repair works are not carried out, the local authority carries out the repairs by its self. Subsequently, the course of repair is charged on the landlord. Lister v Lane [1893], however, there is a perfect case of the levels of jurisdiction that the local authority could have. This is because in the case, it was held that what was supposed to be a mere repair out went its bounds to become reconstruction. Finally, damages could be head against the landlord in situations where there are injuries to health in the cost of repair by the tenant. The damage always comes as a compensation for injury or as the cost of alternative accommodation. It must be noted however that the tenant does not only claim damages for the health injuries and alternative accommodation in isolation but also takes the damages in addition to the cost of repairs that were carried out. Ultimately therefore, the application of this particular course of action could be combined with another course of action if the combined remedy holds the key to getting the repairs carried out. In Anthruther-Gough-Calthorpe v McOscar [1924], it was held that it was the tenant that had the right of damage and not the landlord, who in the fact brought an action for the tenant. REFERENCE LIST Landlord and Tenant Act 1985. Chapter 70 Gray & Grey, Elements of Land Law, 5th edn, 2009, Oxford: Oxford University Press, p.341 s 37 of Supreme Court Act 1981 CASE LAWS Street v Mountford [1985] UKHL 4 Anthruther-Gough-Calthorpe v McOscar [1924] 1 KB 716 Heslop v Burns [1974] CA Crane -v- Morris [1965] 1 WLR 1104 Norris v Checkfield ([1991] 1 WLR 1241 Sir Raymond Evershed Mr, Re Ellenborough Park (1956) Ch 131 Crow v Wood [1971] 1 QB 77 Rance v Elvin [1985] CA 14-Feb-1985 Lister v Lane [1893] 2 QB 212 Lopes LJ in Reily v Booth [1890] 44 Ch D 12 at 26 Harris v De Pinna (1886) 33 Ch D 238 Simmons v Dobson [1991] 1 WLR 720 at 723 Lee-Parker v Izzet (1971) 1 WLR 168 Jeune v Queen’s Cross Properties Ltd [1974] Ch 97 United Scientific Holdings v Burnley Borough Council [1977] 2 All ER 62 Read More